Molko v. Holy Spirit Assn. (1988)
46 Cal.3d 1092 , 762 P.2d
252 Cal.Rptr. 122
[S.F. No. 25038. Supreme Court of California.
October 17, 1988.]
DAVID MOLKO, Plaintiff, Cross-defendant and Appellant; TRACY LEAL, Plaintiff
and Appellant, v. HOLY SPIRIT ASSOCIATION FOR THE UNIFICATION OF WORLD CHRISTIANITY
et al., Defendants, Cross-complainants and Appellants; NEIL MAXWELL, Cross-defendant
(Opinion by Mosk, J., with Lucas, C. J., Broussard, Arguelles, Eagleson
and Kaufman, JJ., concurring. Separate concurring and dissenting opinion
by Anderson (Carl W.), J.)
Ford Greene, Shapiro & Shapiro, Carl Shapiro, Aylsworth C. Greene
III, Lynn M. Rennert, Stanley F. Leal, Kelly, Leal, Olimpia, Davilla &
Whelan, Kelly, Leal & Davilla and Kelly, Leal & Olimpia for Plaintiff,
Cross-defendant and Appellant, Plaintiff and Appellant and Cross-defendant
Jeffrey S. Ross, James A. Dorskind, Friedman, Sloan & Ross and Lawrence
A. Gibbs for Defendants, Cross-complainants and Appellants.
Harold J. Kwalwasser, Robin D. Wiener, Tuttle & Taylor, Paul Morantz,
Robert H. Philibosian, Morton B. Jackson, MacDonald, Halsted & Laybourne,
Baker & McKenzie, Bruce J. Ennis, Donald N. Bersoff, Kit Adelman-Pierson,
Ennis, Friedman & Bersoff, Michael J. Woodruff, Samuel E. Ericsson,
Michael A. Paulsen, Heidi S. Hagerman, Earl W. Trent, Jr., and Remcho, Johansen
& Purcell as Amici Curiae.
This case raises three issues: (1) whether, consistently with the free
exercise clause of the First Amendment of the United States Constitution
and of article I, section 4, of the California Constitution, former members
of a religious organization may sue that organization on various causes
of action arising out of its allegedly deceptive recruitment practices;
(2) whether the organization may cross-complain against a former member
and others for allegedly violating its civil rights under federal and state
statutes; [46 Cal.3d 1101] and (3) whether California's equitable indemnity
doctrine permits an intentional tortfeasor to obtain indemnity from concurrent
intentional tortfeasors on a comparative fault basis.
Appellants David Molko and Tracy Leal are former members of the Unification
Church. fn. 1 While members of the Church, they were on separate occasions
forcibly abducted from a public street by third parties and "deprogrammed"
-- i.e., persuaded to relinquish their belief in and association with the
Church. Thereafter Molko and Leal filed the present action against the Church,
alleging they had been fraudulently induced to join the Church through a
variety of deceptive tactics on the part of some of its members. Molko and
Leal each asserted causes of action for fraud and deceit, intentional infliction
of emotional distress, and false imprisonment. Molko also sought restitution
of a $6,000 gift he alleged the Church obtained from him by undue influence.
The Church filed a first amended cross-complaint against Molko and Neil
Maxwell, fn. 2 alleging their deprogramming activities violated the Church's
federal and state civil rights. fn. 3 (42 U.S.C. § 1985(3); Civ. Code,
§§ 51.7, 52.) The Church also sued Maxwell for full or partial
indemnity, on the theory that Maxwell, by kidnapping and deprogramming Molko,
had wholly or partially caused any damages for which the Church might be
found liable to Molko.
The court granted summary judgment for the Church in the action brought
by Molko and Leal, and entered a judgment of dismissal for Molko after sustaining
his demurrer without leave to amend as to the Church's amended cross-complaint
against him. Similarly, the court entered a judgment of dismissal for Maxwell
after sustaining his demurrer without leave to amend as to the Church's
amended cross-complaint against him.
Molko and Leal appealed from the summary judgment for the Church. The
Church cross-appealed from the judgment of dismissal for Molko, and appealed
from the judgment of dismissal for Maxwell and Alexander. The [46 Cal.3d
1102] Court of Appeal consolidated all the appeals; it affirmed the summary
judgment for the Church, but reversed the judgments of dismissal for Molko,
Maxwell, and Alexander. We granted petitions by Molko and Leal to review
the affirmance of summary judgment for the Church, and by Maxwell to review
the reversal of his judgment of dismissal. fn. 4
As will appear, we conclude that (1) the summary judgment for the Church
should be affirmed as to the cause of action for false imprisonment but
reversed as to the causes of action for fraud, intentional infliction of
emotional distress, and restitution, and (2) the reversal of the judgment
of dismissal for Maxwell should be affirmed.
A. Facts as to David Molko fn. 5
In June 1978 27-year-old David Molko graduated from Temple University
School of Law. A month later he took and passed the Pennsylvania bar examination.
In spite of these educational successes, he was unsure about his future.
He considered moving to California, and decided to visit San Francisco,
perhaps to find a job or take the California bar examination. He arrived
in San Francisco in early January 1979.
On Sunday, January 21, Mark Bush and Ernest Patton approached Molko as
he waited at a bus stop in San Francisco. Bush and Patton told Molko they
lived in an "international community" of socially conscious people
from different occupations who met in the evenings to discuss important
issues. They invited Molko to come to dinner that evening. Molko asked the
two their occupations and was told they did social work and worked with
environmental programs. He asked if Bush and Patton had a "religious
connection." They said "no." Bush and Patton did not reveal
to Molko that they were members of the Unification Church, or that their
purpose in approaching him and inviting him to dinner was to recruit him
into the Church.
Molko attended the dinner, at which there appeared to be a number of
other invited guests. He was kept apart from the other guests, and during
[46 Cal.3d 1103] dinner was held in constant conversation with group members.
After dinner there was a lecture on general social problems, followed by
a slide show on "Boonville" -- a "farm" a few hours
to the north, owned by the group at the house. The slide show depicted Boonville
as a rural getaway where people from the house went for relaxation and pleasure.
When the presentation was concluded, all the dinner guests were invited
to visit the farm. Bush, Patton, and another group member, David Hager,
strongly urged Molko to accept the invitation, and told him a van would
be leaving for Boonville in a few minutes. Molko said he had no personal
belongings with him, and he preferred to think about it. The group members
assured him they would provide for all his needs, and again urged him to
go. Impressed by this hospitality and enthusiasm, Molko finally agreed to
go. At their request he then filled out and signed a form declaring his
name, address, and telephone number, fn. 6 and 15 minutes later was in a
van on his way to Boonville. He did not know and was not told Boonville
was an indoctrination facility for the Unification Church.
The van arrived at Boonville several hours later. Molko was given a sleeping
bag and shown to a shelter where others were already sleeping. He quickly
fell asleep, and awoke the next morning to discover that many more people
than just the 12 from the van were sleeping in the large room. When he arose
and walked to the bathroom, a group member arose and walked with him. Wherever
he went, a group member accompanied him.
Molko expected to spend some relaxed time in the country, but soon learned
the day's schedule was tightly planned and left him no time to himself.
First came group calisthenics, then breakfast, then a lecture on moral and
ethical issues, followed by small group discussions of the lecture. Next
came lunch, more exercise, another lecture and discussion, then a break
to take a shower. Finally came dinner, "testimonials" by individuals
about their lives and their impressions of the day at Boonville, and group
singing followed by yet another small group discussion. At the end of the
day Molko was exhausted and quickly fell asleep.
Tuesday was a repeat of Monday, except that Molko became acquainted with
group member Bethie Rubenstein. He asked her the name of the group, and
she told him it was the "Creative Community Project." He asked
if the group was associated with any religious organization, and she told
him "no." By the end of Tuesday, Molko was tired, uncomfortable
and [46 Cal.3d 1104] concerned about the direction his life was taking.
He informed Patton and Bush he desired to return to San Francisco. They
told him he was free to leave and that a bus would depart at three o'clock
in the morning, but they strongly urged him to stay and hear the important
information that would be discussed in the days to come. Molko agreed to
stay on a little longer.
Wednesday and Thursday were exactly like Monday and Tuesday -- even the
two-day cycle of lectures was repeated verbatim. The lecturers spoke of
brotherly love and social problems, and included references to God and some
amount of prayer. On Wednesday, Rubenstein informed Molko the group's teachings
derived from many philosophical sources, including Aristotle, Jefferson,
and Reverend Sun Myung Moon. She did not disclose that Reverend Moon was
the group's spiritual leader.
On Friday night, Molko was told the group was about to leave Boonville
for "Camp K" -- another group-owned retreat used on weekends.
Molko said he wanted to return to San Francisco, but again was urged to
give the group a few more days. He agreed and made the trip to Camp K, still
oblivious of his involvement with the Unification Church.
The exercise-lecture-discussion regimen continued throughout both the
weekend at Camp K and the following week back at Boonville, during which
Molko became increasingly disoriented and despairing of his future. On Friday
-- his 12th day of continuous group activity -- Molko once again asked if
the group was involved with any larger organization. Finally, a member named
Gloria revealed to him for the first time that the group was part of the
Unification Church. He was confused and angry, but was informed the deception
was necessary because people who had heard negative stories about the Church
tended to be unreceptive if they knew the group's identity before hearing
what it had to say. He agreed to stay and try to work out his confusion.
That night he returned to Camp K, where he remained for approximately
five to seven weeks of "advanced training." The same regimen and
structure continued during this period. Molko's parents, concerned about
his welfare, flew from Florida in late February to talk to him. They stayed
a week, but saw their son for only a few hours, and only in the presence
of Church members. The parents urged him to come home briefly, but he refused.
Molko -- who by this time had been taught that his parents were agents of
Satan trying to tempt him away from the Church -- was confused by the visit,
but remained with the Church. His parents returned to Florida. [46 Cal.3d
On finishing his advanced training at Camp K, Molko was judged ready
to go back to the city to sell flowers and "witness" fn. 7 for
the Church. Shortly thereafter, in early April, two Church leaders told
Molko the Church desperately needed funds for taxes, and urged him to give
money. He donated $6,000 to the Church. Sometime during this period he also
became a formal Church member.
Church leaders advised Molko he could help the Church most by becoming
a member of the bar, and promised that the Church would pay for his bar
review course. He agreed, and studied for and took the California bar examination
while living in the Church's San Francisco house. As he left the final session
of the bar examination, however, Molko was abducted and taken to a motel
by "deprogrammers" hired by his parents. After three days of deprogramming,
Molko terminated his association with the Unification Church.
B. Facts as to Tracy Leal
In June 1979 19-year-old Tracy Leal completed her freshman year at San
Diego State University. She had found the college large and impersonal;
she considered transferring to Humboldt State University in northern California,
but desired to visit the school before applying for admission. To that end
she bought a bus ticket to Humboldt and set out on Sunday, June 7. The trip
required changing busses in San Francisco.
While waiting for her bus in San Francisco, Leal was approached by Unification
Church member Collette Zielinski, who was witnessing for the Church. Zielinski
told Leal she was waiting for a friend arriving from Switzerland. Leal remarked
that she loved to ski and had always wanted to go to Switzerland. Zielinski
said her friend was also a skier and perhaps Leal would like to talk to
her. Church member Bradford Parker then arrived, and Zielinski and Parker
told Leal about the house in which they lived. They said they were part
of the "Creative Community Project," described as a group of socially
concerned professional people involved in good works such as giving food
to the poor. They invited Leal to have lunch and go sightseeing with them,
then join them for dinner at the house. They assured Leal she could catch
another bus to Humboldt later that evening. Leal asked if Zielinski and
Parker were part of a religious group, and said she did not want to get
involved with them if they were. They replied only [46 Cal.3d 1106] that
the people in their group "all came from different religious backgrounds."
Leal accepted their invitation.
That evening Leal went to the group's house for dinner. Like David Molko,
she was kept apart from other dinner guests and was held in constant conversation
with Church members. She heard the same lecture, saw the slide show on Boonville,
and received the same invitation to go there. She accepted the invitation,
signed the same kind of form, fn. 8 and a few minutes later was on the bus
to Boonville. Like Molko, she did not know Boonville was part of the Unification
At Boonville Leal experienced the same exercise-lecture-discussion regimen
Molko received five months earlier. On Tuesday, her second day at Boonville,
she asked Joshua, a codirector of the camp, whether the group was part of
a religious organization, and specifically whether they were "Moonies."
Joshua said they were not Moonies, but were a form of Christian group. He
said, however, they were "keeping quiet about it for a while"
because they did not want to frighten people away.
After two days at Boonville, Leal went for a two-week seminar at Camp
K. During this period she experienced the same type of doubts and fears
as had Molko. At the end of the two weeks, she again asked Zielinski and
Parker if the organization was "part of the Moonies." They assured
her it was not. Later that evening they added that, while they were not
Moonies, they did follow some of the teachings of Reverend Moon. Five days
later -- twenty-two days after recruiting Leal at the bus depot -- they
informed Leal they were in fact part of the Unification Church.
Leal remained with the group after learning its identity. During the
next two months her family visited her and tried to convince her to get
away from the Church for a while. She told her parents she would not leave
the house with them for fear of being abducted and deprogrammed. On September
1 Leal flew to Boulder, Colorado, for a month-long series of advanced lectures,
at the conclusion of which she became a formal Church member. From Boulder
she went to Los Angeles, where she sold flowers on the street to raise money
for the Church. On October 29, Leal was abducted from a Los Angeles street
by deprogrammers hired by her parents. The deprogrammers successfully persuaded
Leal to abandon her association with the Unification Church. [46 Cal.3d
II. Fraud and Deceit
A. Standard of Review
A motion for summary judgment "shall be granted if all the papers
submitted show that there is no triable issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law."
(Code Civ. Proc., § 437c, subd. (c).)  The purpose of summary judgment
is to penetrate evasive language and adept pleading and to ascertain, by
means of affidavits, the presence or absence of triable issues of fact.
(Chern v. Bank of America (1976) 15 Cal.3d 866, 873 [127 Cal.Rptr. 110,
544 P.2d 1310].) Accordingly, the function of the trial court in ruling
on a motion for summary judgment is merely to determine whether such issues
of fact exist, and not to decide the merits of the issues themselves. (Walsh
v. Walsh (1941) 18 Cal.2d 439, 441 [116 P.2d 62].)
Summary judgment is a drastic measure that deprives the losing party
of a trial on the merits. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35 [210
Cal.Rptr. 762, 694 P.2d 1134].) It should therefore be used with caution,
so that it does not become a substitute for trial. (Rowland v. Christian
(1968) 69 Cal.2d 108, 111 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].)
The affidavits of the moving party should be strictly construed, and those
of the opponent liberally construed. (Stationers Corp. v. Dun & Bradstreet
(1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785].) Any doubts
as to the propriety of granting the motion should be resolved in favor of
the party opposing the motion. (Slobojan v. Western Travelers Life Ins.
Co. (1969) 70 Cal.2d 432, 437 [74 Cal.Rptr. 895, 450 P.2d 271].)
 A defendant is entitled to summary judgment if the record establishes
as a matter of law that none of the plaintiff's asserted causes of action
can prevail. (Stationers Corp. v. Dun & Bradstreet, supra, 62 Cal.2d
at p. 417.) To succeed, the defendant must conclusively negate a necessary
element of the plaintiff's case, and demonstrate that under no hypothesis
is there a material issue of fact that requires the process of a trial.
(Ibid.) We shall examine the grant of summary judgment in this case with
the foregoing standard in mind. fn. 9 [46 Cal.3d 1108]
B. Nature of the Fraud Claim
 The necessary elements of fraud are: (1) misrepresentation (false
representation, concealment, or nondisclosure); (2) knowledge of falsity
(scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable
reliance; and (5) resulting damage. (Seeger v. Odell (1941) 18 Cal.2d 409,
414 [115 P.2d 977, 136 A.L.R. 1291].) Molko and Leal contend specified members
of the Unification Church knowingly misrepresented the Church's identity
with the intent to induce each of them to associate with and ultimately
join the Church. Molko and Leal further contend they justifiably relied
on those misrepresentations in unknowingly agreeing to participate in Church
activities, and suffered psychological and financial damage as a result
of their involvement with and membership in the Unification Church. They
state they would not have chosen to associate with the Church had they known
its true identity.
The Church concedes for pleading purposes its members knowingly misrepresented
the Church's identity to Molko and Leal. It further concedes the misrepresentations
were made with the intent to induce Molko and Leal first to associate with
Church recruiters and later to continue participating in Church activities.
Nor, finally, does the Church contest plaintiffs' claims that they suffered
damages as a result of their involvement with the Church. The Church contends,
however, that it is entitled to summary judgment because the undisputed
facts conclusively negate the element of justifiable reliance.
 Justifiable reliance exists when the misrepresentation or nondisclosure
was an immediate cause of the plaintiff's conduct which alters his legal
relations, and when without such misrepresentation or nondisclosure he would
not, in all reasonable probability, have entered into the contract or other
transaction. (Wennerholm v. Stanford Univ. Sch. of Med. (1942) 20 Cal.2d
713, 717 [128 P.2d 522, 141 A.L.R. 1358]; Spinks v. Clark (1905) 147 Cal.
439, 444 [82 P. 45].) The Church contends that because Molko and Leal learned
the Church's true identity prior to becoming formal members, the misrepresentations
were "cured" and Molko and Leal could not have justifiably relied
on them in deciding to join the Church. (See, e.g., Neet v. Holmes (1944)
25 Cal.2d 447, 459 [154 P.2d 854] [plaintiff who went ahead with transaction
after learning true facts "waived the fraud"].)
Molko and Leal admit they were aware of the Church's identity at the
time they formally joined. However, they contend that by the time the Church
disclosed its true identity, the Church's agents had rendered them incapable
of deciding not to join the Church, by subjecting them, without their knowledge
or consent, to an intense program of coercive persuasion or [46 Cal.3d 1109]
mind control. fn. 10 They contend, in other words, that the Church deceived
them into a setting in which they could be "brainwashed," and
that the Church could not then "cure" the deception by telling
them the truth after their involuntary indoctrination was accomplished.
fn. 11 Molko and Leal therefore contend that a triable issue of fact remains
as to whether the Church brainwashed them prior to disclosing its identity.
If the answer is affirmative, they urge, they have established justifiable
Although Molko and Leal are far from the first to advance a brainwashing
theory in a case involving religious recruitment and indoctrination (see,
e.g., Katz v. Superior Court (1977) 73 Cal.App.3d 952 [141 Cal.Rptr. 234];
Meroni v. Holy Spirit Assn. (1984) 125 Misc.2d 1061 [480 N.Y.S.2d 706];
Orlando v. Alamo (8th Cir. 1981) 646 F.2d 1288; Turner v. Unification Church
(1st Cir. 1979) 602 F.2d 458; Lewis v. Holy Spirit Ass'n for Unification
(D.Mass 1983) 589 F.Supp. 10; Schuppin v. Unification Church (D.Vt. 1977)
435 F.Supp. 603), they are the first to do so in this court. We therefore
find it appropriate to briefly review the concept of brainwashing.
 Brainwashing is "a forcible indoctrination to induce someone
to give up basic political, social, or religious beliefs and attitudes and
to accept contrasting regimented ideas." (Webster's Ninth New Collegiate
Dict. (1987) p. 175.) The specific methods of indoctrination vary, but the
basic theory is that brainwashing "is fostered through the creation
of a controlled environment that heightens the susceptibility of a subject
to suggestion and manipulation through sensory deprivation, physiological
depletion, cognitive dissonance, peer pressure, and a clear assertion of
authority and dominion. The aftermath of indoctrination is a severe impairment
of autonomy and [of] the ability to think independently, which induces a
subject's unyielding compliance and the rupture of past connections, affiliations,
and associations." (Peterson v. Sorlien (Minn. 1981) 299 N.W.2d 123,
126 [11 A.L.R.4th 208].)
The brainwashing concept is controversial. Some highly respected authorities
conclude brainwashing exists and is remarkably effective. (See, e.g., Lifton,
Thought Reform and the Psychology of Totalism (1961); Schein, Coercive Persuasion
(1961).) Some commentators additionally conclude that certain religious
groups use brainwashing techniques to recruit and [46 Cal.3d 1110] control
members. (See, e.g., Delgado, Religious Totalism: Gentle and Ungentle Persuasion
Under the First Amendment (1977) 51 So.Cal.L.Rev. 1, 3-9; Rudin & Rudin,
Prison or Paradise? The New Religious Cults (1980) pp. 20-25; Clark et al.,
Destructive Cult Conversion: Theory, Research and Treatment (1979) pp. 1-15.)
Courts have recognized the existence of brainwashing in religious settings.
(See Peterson v. Sorlien, supra, 299 N.W.2d at p. 126; Meroni v. Holy Spirit
Assn., supra, 125 Misc.2d 1061, 1067.)
To the contrary, other authorities believe brainwashing either does not
exist at all (see Coleman, New Religions and the Myth of Mind Control (1984)
Am. J. Orthopsychiatry 322, 323) or is effective only when combined with
physical abuse or physical restraint (see Scheflin & Opton, The Mind
Manipulators (1978) p. 23). We need not resolve the controversy; we need
only conclude that the existence of such differing views compels the conclusion
that Molko and Leal's theory indeed raises a factual question -- viz., whether
Molko and Leal were brainwashed -- which, if not prohibited by other considerations,
precludes a grant of summary judgment for the Church.
C. The Singer/Benson Declarations
In support of their theory, Molko and Leal sought to introduce the declarations
of psychologist Dr. Margaret Singer and psychiatrist Dr. Samuel Benson.
Both are experts on coercive persuasion and its use by religious groups.
Drs. Singer and Benson examined Molko and Leal, and stated in their declarations
that they believed the Unification Church's sophisticated indoctrination
techniques had rendered Molko and Leal incapable of exercising their own
will and judgment, or of responding independently upon learning of their
The trial court and Court of Appeal ruled the Singer and Benson declarations
inadmissible on the grounds that (1) the doctors' testimony conflicted with
that of Molko and Leal and (2) introducing the declarations would raise
inquiries forbidden by the free exercise clause of the First Amendment.
We disagree with both conclusions.
The courts below found a conflict between (1) plaintiffs' statements
that they joined the Church because it satisfied "personal concerns
and anxieties" and (2) Singer's and Benson's statements that it was
plaintiffs' unawareness of the Church's identity that caused them to stay.
We perceive no such conflict. First, the very theory of coercive persuasion
is that it operates, in part, by first amplifying the subject's personal
concerns and anxieties and then providing a means of satisfying them. (Schein,
Coercive Persuasion, supra, at pp. 117-258.) Second, the mere fact that
the Church [46 Cal.3d 1111] addressed plaintiffs' personal concerns and
anxieties does not conclusively or necessarily establish that Molko and
Leal would have chosen to associate with the Church had they known its identity.
Thus, viewed in the light most favorable to Molko and Leal, both sets of
statements are consistent with the contention that they were deceived into
a situation in which they were then brainwashed. Accordingly, the Singer/Benson
declarations are not, as the Church argues, made inadmissible by the rule
in D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21 [112 Cal.Rptr.
786, 520 P.2d 10].
The courts below also held that the Singer and Benson declarations raised
questions not allowable under the free exercise clause of the First Amendment
to the United States Constitution. We disagree, for reasons we will discuss
First, however, we must place the constitutional discussion in the correct
perspective. The Court of Appeal declared that Molko and Leal's theory "rest[ed]
entirely" on the Singer and Benson declarations. Accordingly, it framed
its discussion in terms of whether the declarations' admission would run
afoul of the First Amendment. While we reach the same issues under both
the federal and state Constitutions, we do so in terms not of the declarations,
but of the brainwashing theory itself. Although the Singer and Benson declarations
provide a scientific basis for and lend support to plaintiffs' brainwashing
theory, we find that the basic theory is amply stated in plaintiffs' own
declarations. fn. 12 Therefore, even if arguendo the declarations were correctly
excluded, fn. 13 their exclusion does not affect the brainwashing theory
for purposes of summary judgment. Molko and Leal have stated an issue of
fact; if the issue survives constitutional analysis, it must defeat summary
judgment on their actions for fraud. [46 Cal.3d 1112]
D. Constitutional Issues
1. Applicable Principles
The First Amendment to the Constitution of the United States provides
that "Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof ...." The provision creates
two very different protections. The "establishment clause" guarantees
the government will not impose religion on us; the "free exercise"
clause guarantees the government will not prevent us from freely pursuing
any religion we choose.
Because the First Amendment refers only to Congress, it originally did
not apply to state and local governments. (See, e.g., Permoli v. New Orleans
(1845) 44 U.S. (3 How.) 589, 610 [11 L.Ed. 739, 748-749] [upholding conviction
of Catholic priest for violating ordinance against exposing corpses to public
view when he blessed the deceased at a funeral mass].) After the Civil War
the states ratified the Fourteenth Amendment, and pursuant thereto the Supreme
Court made the free exercise and establishment clauses federally enforceable
against the states. (Everson v. Board of Education (1947) 330 U.S. 1, 8
[91 L.Ed.2d 711, 719-720, 67 S.Ct. 504, 168 A.L.R. 1392]; (Cantwell v. Connecticut
(1940) 310 U.S. 296, 303-304 [84 L.Ed. 1213, 1217-1218, 60 S.Ct. 900, 128
California guarantees free exercise and disestablishment in the state
Constitution. (Cal. Const., art. I, § 4.)
 The religion clauses protect only claims rooted in religious belief.
(Wisconsin v. Yoder (1972) 406 U.S. 205, 215 [32 L.Ed.2d 15, 25, 92 S.Ct.
1526].) The free exercise clause protects religious beliefs absolutely.
(Cantwell v. Connecticut, supra, 310 U.S. at pp. 303-304 [84 L.Ed.2d at
pp. 1217-1218].) While a court can inquire into the sincerity of a person's
beliefs, it may not judge the truth or falsity of those beliefs. (United
States v. Ballard (1944) 322 U.S. 78, 86-88 [88 L.Ed. 1148, 1153-1155, 64
S.Ct. 882].) The government may neither compel affirmation of a religious
belief (Torcaso v. Watkins (1961) 367 U.S. 488, 495 [6 L.Ed.2d 982, 987,
81 S.Ct. 1680]), nor penalize or discriminate against individuals or groups
because of their religious beliefs (Fowler v. Rhode Island (1953) 345 U.S.
67, 70 [97 L.Ed. 828, 831, 73 S.Ct. 526]), nor use the taxing power to inhibit
the dissemination of particular religious views (Murdock v. Pennsylvania
(1943) 319 U.S. 105, 116 [87 L.Ed. 1292, 1300, 63 S.Ct. 870, 146 A.L.R.
 However, while religious belief is absolutely protected, religiously
motivated conduct is not. (Sherbert v. Verner (1963) 374 U.S. 398, 402-403
[46 Cal.3d 1113] [10 L.Ed.2d 965, 969-970, 83 S.Ct. 1790]; People v. Woody
(1964) 61 Cal.2d 716, 718 [40 Cal.Rptr. 69, 394 P.2d 813].) Such conduct
"remains subject to regulation for the protection of society."
(Cantwell v. Connecticut, supra, 310 U.S. at p. 304 [84 L.Ed. at p. 1218].)
Government action burdening religious conduct is subject to a balancing
test, in which the importance of the state's interest is weighed against
the severity of the burden imposed on religion. (Wisconsin v. Yoder, supra,
406 U.S. at p. 214 [32 L.Ed.2d at p. 24].) The greater the burden imposed
on religion, the more compelling must be the government interest at stake.
(Compare Wisconsin v. Yoder, supra, 406 U.S. at pp. 221-235 [32 L.Ed.2d
at pp. 34-36] [government's strong interest in educating citizens insufficient
to justify educational requirement that threatened continued survival of
Old Order Amish communities], with Goldman v. Weinberger (1986) 475 U.S.
503, 508 [89 L.Ed.2d 478, 484-485, 106 S.Ct. 1310] [government's reasonable
interest in uniform military attire sufficient to justify mild burden on
religious expression created by ban against Jewish officer wearing a yarmulke].)
A government action that passes the balancing test must also meet the further
requirements that (1) no action imposing a lesser burden on religion would
satisfy the government's interest and (2) the action does not discriminate
between religions, or between religion and nonreligion. (Braunfield v. Brown
(1961) 366 U.S. 599, 607 [6 L.Ed.2d 563, 568-569, 81 S.Ct. 1144].)
Applying these criteria, the Supreme Court has allowed some religious
conduct to be banned entirely (see, e.g., Reynolds v. United States (1878)
98 U.S. 145, 166 [25 L.Ed. 244, 250] [upholding law against polygamy]; Prince
v. Massachusetts (1944) 321 U.S. 158, 170-171 [88 L.Ed. 645, 654-655, 64
S.Ct. 438] [permitting state to prohibit parents from allowing their children
to distribute religious literature when necessary to protect children's
health and safety]), and some conduct to be compelled in the face of religious
objections (see, e.g., Jacobson v. Massachusetts (1905) 197 U.S. 11, 38
[49 L.Ed. 643, 654-655, 25 S.Ct. 358] [upholding compulsory vaccinations
for communicable diseases]; United States v. Lee (1982) 455 U.S. 252, 261
[71 L.Ed.2d 127, 134-135, 102 S.Ct. 1051] [upholding mandatory participation
of Amish in Social Security system]).
Other religious conduct, though not banned, has been restricted. (See,
e.g., Heffron v. International Society for Krishna Consciousness, Inc. (1981)
452 U.S. 640, 654 [69 L.Ed.2d 298, 310-311, 101 S.Ct. 2559] [upholding law
restricting sale and distribution of literature and soliciting of funds
at state fair to booths at specified locations]; Cox v. New Hampshire (1941)
312 U.S. 569, 575 [85 L.Ed. 1049, 1053, 61 S.Ct. 762] [upholding license
requirement for religious parades].) Still other religious conduct, though
not banned or restricted, has been made more costly. (See, e.g., Braunfield
v. Brown, supra, 366 U.S. 599, 605 [6 L.Ed.2d 563, 567-568] [upholding Sunday
[46 Cal.3d 1114] closing law in spite of financial burden on Orthodox Jew
who must refrain from working Saturday as well]; Bob Jones University v.
United States (1983) 461 U.S. 574, 604 [76 L.Ed.2d 157, 181, 103 S.Ct. 2017]
[upholding denial of tax-exempt status to private school practicing religiously
motivated racial discrimination]; Tony and Susan Alamo Foundation v. Secty.
of Labor (1985) 471 U.S. 290, 305 [85 L.Ed.2d 278, 290-291, 105 S.Ct. 1953]
[holding minimum wage laws applicable to religious groups].)
 While judicial sanctioning of tort recovery constitutes state action
sufficient to invoke the same constitutional protections applicable to statutes
and other legislative actions (New York Times v. Sullivan (1964) 376 U.S.
254, 265 [11 L.Ed.2d 686, 697-698, 84 S.Ct. 710, 95 A.L.R.2d 1412]), religious
groups are not immune from all tort liability. It is well settled, for example,
that religious groups may be held liable in tort for secular acts. (See,
e.g., Malloy v. Fong (1951) 37 Cal.2d 356, 372 [232 P.2d 241] [religious
corporation liable for negligent driving by employee].) Most relevant here,
in appropriate cases courts will recognize tort liability even for acts
that are religiously motivated. (See, e.g., O'Moore v. Driscoll (1933) 135
Cal.App. 770, 778 [28 P.2d 438] [allowing priest's action against his superiors
for false imprisonment as part of their effort to obtain his confession
of sins]; Bear v. Reformed Mennonite Church (1975) 462 Pa. 330 [341 A.2d
105, 107] [allowing action for interference with marriage and business interests
when church ordered congregation to "shun" former member]; Carrieri
v. Bush (1966) 69 Wn.2d 536 [419 P.2d 132, 137] [allowing action for alienation
of affections when pastor counselled woman to leave husband who was "full
of the devil"]; Candy H. v. Redemption Ranch, Inc. (M.D.Ala. 1983)
563 F.Supp. 505, 516 [allowing action for false imprisonment against religious
group]; Van Schaick v. Church of Scientology of Cal., Inc. (D.Mass. 1982)
535 F.Supp. 1125, 1135 ["[c]auses of action based upon some proscribed
conduct may, thus, withstand a motion to dismiss even if the alleged wrongdoer
acts upon a religious belief or is organized for a religious purpose"].)
2. Constitutional Analysis of the Fraud Claim
 While the Unification Church's standing as a church is not at issue,
fn. 14 Molko and Leal contend the Church's misrepresentations were "entirely
secular" and therefore not protected by the religion clauses. We disagree.
Molko and Leal themselves claim the Church made its misrepresentations because
of a belief in what they describe as "Heavenly Deception." According
[46 Cal.3d 1115] to Molko and Leal, that doctrine holds, in essence, that
it is acceptable to lie to someone in order to give him the opportunity
to hear Reverend Moon's teachings. fn. 15 As alleged by the plaintiffs,
the Church's deceptions, although secular on the surface, are clearly "rooted
in religious belief." (Wisconsin v. Yoder, supra, 406 U.S. at p. 215
[32 L.Ed.2d at p. 25].) While this does not mean such Church misrepresentations
are immune from government regulation, it does mean any such regulation
must survive constitutional scrutiny.
Preliminarily, we note Molko and Leal do not contest the sincerity of
what they understand to be the Church's beliefs; indeed, as just stated,
they assert the Church's deceptions were the product of sincerely held beliefs.
 Our initial inquiry, then, is whether plaintiffs' actions for fraud
implicate religious belief or religiously motivated conduct. If the former,
the actions are barred. Sherbert v. Verner, supra, 374 U.S. at pp. 402-403
[10 L.Ed.2d at pp. 969-970].) If the latter, further constitutional analysis
Molko and Leal claim they do not challenge the truth or falsity of the
Church's beliefs; they contend rather that they challenge only the Church's
fraudulent conduct in implementing those beliefs. The Court of Appeal disagreed,
reasoning that it would be impossible to consider Molko and Leal's theory
"without questioning the authenticity and force of the Unification
Church's religious teachings and permitting a jury to do likewise, which
is constitutionally forbidden." The court relied on Katz v. Superior
Court, supra, 73 Cal.App.3d 952, in reaching its conclusion, and the Church
adopts this view. We therefore examine Katz to determine whether such reliance
was properly placed.
Like the present case, Katz involved allegations of brainwashing against
the Unification Church. The plaintiffs in Katz, however, were not former
Church members but parents of current Church members. Claiming their adult
children had been brainwashed, the parents sought and received orders from
the superior court appointing them temporary conservators of the persons
of their children. The parents' objective was to have their children deprogrammed
and their children's association with the Unification Church terminated.
The Court of Appeal in Katz overturned the conservatorship orders, holding
that in the absence of actions rendering the adult believers "gravely
disabled," the processes of the state could not "be used to deprive
the believer of his freedom of action and to subject him to involuntary
treatment." [46 Cal.3d 1116] (73 Cal.App.3d at pp. 988-989.) The court
declared the conservatorship orders violated the Church members' free exercise
rights because the orders were based on a judgment regarding the truth or
falsity of their beliefs. (Id. at p. 987.) Likening the Church members'
radical changes of lifestyle to the refusal of the Amish in Yoder to send
their children to high school, the court found the situation one in which
conduct could not be separated from beliefs. (Ibid.) It queried "When
the court is asked to determine whether that change [in lifestyle] was induced
by faith or by coercive persuasion is it not in turn investigating and questioning
the validity of that faith?" (Ibid.)
The Katz court, of course, faced circumstances substantially different
from those before us. The conservatorship orders, if allowed to stand, would
have directly and severely burdened the Church members' absolute right to
believe in the teachings of the Unification Church. Not only would the orders
have allowed the parents to remove their adult children from the religious
community they claimed to desire; the orders would have further allowed
the parents to subject those individuals, against their will, to a program
specifically intended to eradicate their current religious beliefs. Thus,
the Katz court was correct -- as in Yoder, the burden on the Church members'
conduct was inseparable from the burden on their beliefs.
In sharp contrast, liability for fraud in the case at bar would burden
no one's right to believe and no one's right to remain part of his religious
community, nor would it subject anyone to involuntary deprogramming: the
plaintiffs here are the former Church members themselves. It might, of course,
somewhat burden the Church's efforts to recruit new members by deceptive
The Katz court also faced a legal question markedly different from that
now posed: it considered whether a court could determine if an asserted
religious conversion "was induced by faith or by coercive persuasion."
(Katz v. Superior Court, supra, 73 Cal.App.3d at p. 987.) In other words,
the Katz court had to decide whether a court could "question the validity"
of a person's stated faith because someone else claimed that person was
Again in contrast, the legal question here does not require a court to
determine whether anyone's faith, current or past, is or was real. As stated
above, Molko and Leal do not question the Church's beliefs. Neither do they
challenge the "validity" of their former faith; they state quite
plainly that their erstwhile beliefs in the Unification Church were sincere.
The legal question is simply whether a religious organization can be held
liable on a [46 Cal.3d 1117] traditional cause of action in fraud for deceiving
nonmembers into subjecting themselves, without their knowledge or consent,
to coercive persuasion.
The Court of Appeal held that although Katz was different in certain
ways, its analysis compelled the conclusion that to consider plaintiffs'
fraud claims would require "questioning the authenticity and the force"
of the Church's teachings. We disagree. The challenge here, as we have stated,
is not to the Church's teachings or to the validity of a religious conversion.
The challenge is to the Church's practice of misrepresenting or concealing
its identity in order to bring unsuspecting outsiders into its highly structured
environment. That practice is not itself belief -- it is conduct "subject
to regulation for the protection of society." (Cantwell v. Connecticut,
supra, 310 U.S. at p. 304 [84 L.Ed.2d at p. 1218].)
[11a] Our next inquiry, then, is whether the state's interest in allowing
tort liability for the Church's deceptive practices is important enough
to outweigh any burden such liability would impose on the Church's religious
conduct. (Wisconsin v. Yoder, supra, 406 U.S. at p. 221 [32 L.Ed.2d at pp.
We turn first to the question whether tort liability for fraudulent recruiting
practices imposes any burden on the free exercise of the Unification Church's
religion. We think it does. While such liability does not impair the Church's
right to believe in recruiting through deception, its very purpose is to
discourage the Church from putting such belief into practice by subjecting
the Church to possible monetary loss for doing so. Further, liability presumably
impairs the Church's ability to convert nonbelievers, because some potential
members who would have been recruited by deception will choose not to associate
with the Church when they are told its true identity.
Yet these burdens, while real, are not substantial. Being subject to
liability for fraud does not in any way or degree prevent or inhibit Church
members from operating their religious communities, worshipping as they
see fit, freely associating with one another, selling or distributing literature,
proselytizing on the street, soliciting funds, or generally spreading Reverend
Moon's message among the population. It certainly does not, like the educational
requirement in Yoder, compel Church members to perform acts "at odds
with fundamental tenets of their religious beliefs." (Wisconsin v.
Yoder, supra, 406 U.S. at p. 218 [32 L.Ed.2d at p. 26].) At most, it potentially
closes one questionable avenue for bringing new members into the Church.
We must next consider whether a compelling state interest justifies the
marginal burden such liability imposes on the Church's free exercise rights.
We have no difficulty in finding such an interest in the "substantial
threat to [46 Cal.3d 1118] public safety, peace or order" the Church's
allegedly fraudulent conduct poses. (Sherbert v. Verner, supra, 374 U.S.
at p. 403 [10 L.Ed.2d at p. 970].) For it is one thing when a person knowingly
and voluntarily submits to a process involving coercive influence, as a
novice does on entering a monastery or a seminary. (See Schein, Coercive
Persuasion (1961) p. 272.) But it is quite another when a person is subjected
to coercive persuasion without his knowledge or consent. While some individuals
who experience coercive persuasion emerge unscathed, many others develop
serious and sometimes irreversible physical and psychiatric disorders, up
to and including schizophrenia, self-mutilation, and suicide. (See generally
Delgado, Religious Totalism: Gentle and Ungentle Persuasion Under the First
Amendment, supra, 51 So.Cal.L.Rev. 1, 10-25, and sources cited therein.)
The state clearly has a compelling interest in preventing its citizens from
being deceived into submitting unknowingly to such a potentially dangerous
The state has an equally compelling interest in protecting the family
institution. (See, e.g., Reynolds v. United States, supra, 98 U.S. 145,
165-166 [25 L.Ed. 244, 250]; Meyer v. Nebraska (1923) 262 U.S. 390, 399-403
[67 L.Ed. 1042, 1045-1047, 43 S.Ct. 625, 29 A.L.R. 1446]; Pierce v. Society
of Sisters (1925) 268 U.S. 510, 534-535 [69 L.Ed. 1070, 1077-1078, 45 S.Ct.
571, 39 A.L.R. 468]; Moore v. City of East Cleveland (1977) 431 U.S. 494,
503-504 [52 L.Ed.2d 531, 539-541, 97 S.Ct. 1932] [plur. opn.].) Since the
family almost invariably suffers great stress and sometimes incurs significant
financial loss when one of its members is unknowingly subjected to coercive
persuasion (Enroth, Youth, Brainwashing, and the Extremist Cults (1977)
pp. 199-201), the state has a compelling interest in protecting families
from suffering such impairments as a result of fraud and deception.
We conclude, therefore, that although liability for deceptive recruitment
practices imposes a marginal burden on the Church's free exercise of religion,
the burden is justified by the compelling state interest in protecting individuals
and families from the substantial threat to public safety, peace and order
posed by the fraudulent induction of unconsenting individuals into an atmosphere
of coercive persuasion.
Our analysis cannot end here, however.  A government action burdening
free exercise, even though justified by a compelling state interest, is
impermissible if any action imposing a lesser burden on religion would satisfy
that interest. (Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S.
707, 718 [67 L.Ed.2d 624, 634, 101 S.Ct. 1425]; Sherbert v. Verner, supra,
374 U.S. at p. 406 [10 L.Ed.2d at pp. 971-972]; Braunfield v. Brown, supra,
366 U.S. at p. 607 [6 L.Ed.2d at pp. 568-569].) [11b] After careful consideration,
we perceive no such less restrictive alternative available. It has been
suggested, for example, that brainwashing be criminalized. [46 Cal.3d 1119]
(Lucksted & Martell, Cults: A Conflict Between Religious Liberty and
Involuntary Servitude? (June 1982) F.B.I. Law Enforcement Bull. at p. 21.)
This approach, which would invoke the coercive power of the state and could
result in the jailing of church members, would clearly impose a greater
burden on religion than would civil tort liability for fraud. It has also
been suggested that the law should authorize involuntary deprogramming of
brainwashed individuals by their friends or families. (Aronin, Cults, Deprogramming,
and Guardianship: A Model Legislative Proposal (1982) 17 Colum. J.L. &
Soc. Probs. 163, 183-216.) But the potentially severe burdens on religion
inherent in this approach are evident from our discussion of Katz, supra.
Lastly, it has been proposed that proselytizers be required to obtain informed
consent prior to attempting to initiate religious conversions. (Delgado,
Cults and Conversion: The Case for Informed Consent (1982) 16 Ga. L.Rev.
533, 537-540.) To the extent such an approach would require the active dissemination
of specific information about a religion's nature, activities and lifestyle,
however, it would also burden religion to a greater extent than would simple
passive liability for fraud. In short, it appears that to allow injured
parties to bring private actions for fraud is the least restrictive means
available for advancing the state's interest in protecting individuals and
families from the harmful effects of fraudulent recruitment.
 Finally, even though the state action is justified by a compelling
state interest and imposes the minimum burden required to satisfy that interest,
it can be upheld only if it (1) has the purpose and effect of advancing
the state's secular goals and (2) does not discriminate between religions,
or between religion and nonreligion. (Braunfield v. Brown, supra, 366 U.S.
at p. 607 [6 L.Ed.2d at pp. 568-569].) [11c] We find that judicial sanctioning
of traditional tort liability for fraudulent recruitment satisfies these
standards. First, its purpose and effect is plainly to advance the legitimate
secular goal of protecting persons from being harmed by fraud. Second, it
is nondiscriminatory: all organizations, religious or otherwise, may be
held liable for damages caused by their fraudulent acts. Were a nonreligious
organization -- e.g., a group espousing a political or social cause -- to
deceive a person into unknowingly submitting to coercive persuasion, the
same liability would ensue.
 We conclude that neither the federal nor state Constitution bars
Molko and Leal from bringing traditional fraud actions against the Church
for allegedly inducing them, by misrepresentation and concealment of its
identity, into unknowingly entering an atmosphere in which they were then
subjected to coercive persuasion. Because triable issues of fact exist as
to (1) whether the forms Molko and Leal signed before going to Boonville
put them on notice regarding the Church's identity and (2) whether Molko
and [46 Cal.3d 1120] Leal were, by means of coercive persuasion, rendered
unable to respond independently upon learning they had been deceived, we
hold that the Court of Appeal erred in affirming the summary judgment for
the Church as to plaintiffs' actions for fraud.
III. Intentional Infliction of Emotional Distress
A. Nature of the Claim
 The elements of a cause of action for intentional infliction of
emotional distress are (1) outrageous conduct by the defendant, (2) intention
to cause or reckless disregard of the probability of causing emotional distress,
(3) severe emotional suffering, and (4) actual and proximate causation of
the emotional distress. (Cole v. Fair Oaks Fire Protection Dist. (1987)
43 Cal.3d 148, 155, fn. 7 [233 Cal.Rptr. 308, 729 P.2d 743].) Molko and
Leal contend the Church's fraudulent and coercive conduct was outrageous,
was carried out with reckless disregard of the probability of causing them
emotional distress, and was the actual and proximate cause of their severe
 The Court of Appeal found in part that threats of divine retribution,
of which Molko and Leal complained, were protected religious speech and
could not form the basis of a claim of intentional infliction of emotional
distress. We agree with this view. To the extent the claims are based merely
on threats of divine retribution if Molko and Leal left the church, they
cannot stand. (See Fowler v. Rhode Island, supra, 345 U.S. at p. 70 [97
L.Ed. at p. 831] [court cannot regulate or control sermons]; Van Schaick
v. Church of Scientology of Cal., Inc., supra, 535 F.Supp. at p. 1139.)
However, the claims do not rest solely or even primarily on threats of
divine retribution. Molko and Leal essentially contend the same conduct
that supports their fraud actions -- i.e., misrepresentation and concealment
of the Church's identity for the purpose of inducing them to submit unknowingly
to coercive persuasion -- also gives rise to an action for intentional infliction
of emotional distress. The Court of Appeal, having found the fraud theory
constitutionally impermissible, naturally found the same theory could not
constitutionally provide the basis for a different cause of action. Proceeding
on the assumption that Molko and Leal had freely joined the Church, the
court went on to find the Church's conduct could not be considered "extreme
and outrageous" in the sense required to support an action for emotional
Since we have determined that Molko and Leal's fraud theory is constitutionally
permissible, we must consider whether the Church's conduct under [46 Cal.3d
1121] that theory also gives rise to an action for intentional infliction
of emotional distress. First, however, we consider two contentions raised
by the Church.
B. The Church's Preliminary Arguments
 The Church initially contends that all the misrepresentations of
which Molko and Leal complain are privileged under Civil Code section 47
as "communication[s] without malice, to a person interested therein,
... by one who is also interested ...." The point is without merit.
Molko and Leal concede that the misrepresentations were communications,
and that the Church's intent to recruit Molko and Leal did not reflect a
"state of mind arising from hatred or ill will," as required for
a showing of malice. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 944 [160
Cal.Rptr. 141, 603 P.2d 58].) However, they correctly urge that the communications
cannot be said to have been from one "interested" party to another.
The Church relies on Brewer v. Baptist Church (1948) 32 Cal.2d 791 [197
P.2d 713], to establish that Molko and Leal were interested parties. But
Brewer holds that "the common interest of the members of a church in
church matters is sufficient to give rise to a qualified privilege to communication
between members on subjects relating to the church's interests." (Id.
at p. 796, italics added.) Here the Church has vigorously taken the position
that Molko and Leal did not become Church members until after learning of
the deceptions. It cannot now inconsistently claim a privilege on the theory
that Molko and Leal were members at the time the deceptions occurred.
The Church also contends that a statement by Leal in her deposition that
certain of her harms were "self-inflicted" constitutes an admission
of consent and therefore provides a complete defense to liability under
Civil Code section 3515. This argument is also without merit. Leal's statement
relates to her final few weeks with the Church, during which she sold flowers
on the streets of Los Angeles from 7 a.m. until midnight for 19 of 20 consecutive
days. Leal said the physical harms she experienced were self-inflicted because
she was obeying the Church's doctrine of suffering to "pay indemnity"
to God. Viewed in the light most favorable to Leal, as it must be on motion
for summary judgment, her statement reflects not consent but mere submission.
In any event, since the statement relates to a period of time considerably
later than that during which the alleged fraud and brainwashing occurred,
it cannot provide a defense to the present action.
C. Analysis of the Claim
We begin by observing that the Church does not attempt to negate (1)
its intention to cause, or its reckless disregard of the probability of
causing, emotional distress, (2) plaintiffs' severe emotional suffering,
or (3) its [46 Cal.3d 1122] conduct's actual and proximate causation of
that suffering. [18a] Because the Church must conclusively negate at least
one necessary element of this cause of action to be entitled to summary
judgment (Stationers Corp. v. Dun & Bradstreet, supra, 62 Cal.2d at
p. 417), the propriety of the summary judgment depends on whether the Church
can establish as a matter of law that its conduct, even under Molko and
Leal's theory, was not "extreme and outrageous" in the sense required
to support an action for emotional distress.
 Conduct is extreme and outrageous when it "'"exceeds all
bounds [of decency] usually tolerated by a decent society, [and is] of a
nature which is especially calculated to cause, and does cause, mental distress.
..."'" (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d
at p. 155, fn. 7.) Liability "does not extend to mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities." (Rest.2d
Torts, § 46, com. d.) "'"... Behavior may be considered outrageous
if a defendant (1) abuses a relation or position which gives him power to
damage the plaintiff's interest; (2) knows the plaintiff is susceptible
to injuries through mental distress; or (3) acts intentionally or unreasonably
with the recognition that the acts are likely to result in illness through
mental distress ...."'" (Cole v. Fair Oaks Fire Protection Dist.,
supra, 43 Cal.3d at p. 155, fn. 7.)
[18b] The Church offers two arguments why its conduct was not, as a matter
of law, extreme and outrageous. First it contends its actions amounted to
nothing more than "intensive religious practice," and therefore
were different only in degree, not in kind, from those of many other religious
groups. We find this claim unconvincing. Although fasting, poverty, silence
or cloistered living may constitute intensive religious practice, we have
already determined that fraud, even though purported to be religiously motivated,
is actionable conduct under the circumstances presented here.
Second, as mentioned above, the Church argues that Leal's long hours
of work were "self-inflicted." It contends its encouragement for
her to sell flowers and solicit money does not constitute outrageous conduct.
But since the conduct that the Church relies on occurred after Leal had
formally joined the Church, the argument has no bearing on whether its original
fraudulent inducement into an atmosphere of coercive persuasion -- the conduct
at issue -- is extreme and outrageous.
Viewed in the light most favorable to plaintiffs, the Church's continued
deceptions might well be seen as conduct breaching plaintiffs' trust in
the integrity of those who were promising to make their lives more meaningful.
So viewed, the Church's actions might well constitute an abuse of "a
relation or position which gives [the Church] power to damage the plaintiff's
[46 Cal.3d 1123] interest." (Cole v. Fair Oaks Fire Protection Dist.,
supra, 43 Cal.3d at p. 155, fn. 7.)
"'Where reasonable men may differ, it is for the jury, subject to
the control of the court, to determine whether, in the particular case,
the conduct has been sufficiently extreme and outrageous to result in liability.'"
(Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499 [86 Cal.Rptr.
88, 468 P.2d 216].) Since reasonable persons could differ here, a question
of fact remains as to whether the Church's conduct was outrageous for purposes
of this action. It follows that the Court of Appeal erred in affirming the
summary judgment for the Church as to plaintiffs' actions for intentional
infliction of emotional distress.
IV. False Imprisonment
False imprisonment is "the unlawful violation of the personal liberty
of another." (Pen. Code, § 236; see Parrott v. Bank of America
(1950) 97 Cal.App.2d 14, 22 [217 P.2d 89, 35 A.L.R.2d 263] [definition of
crime and tort the same].)  "The tort of false imprisonment is
the nonconsensual, intentional confinement of a person, without lawful privilege,
for an appreciable length of time, however short." (City of Newport
Beach v. Sasse (1970) 9 Cal.App.3d 803, 810 [88 Cal.Rptr. 476].) A person
is falsely imprisoned "if he is wrongfully deprived of his freedom
to leave a particular place by the conduct of another." (Schanafelt
v. Seaboard Finance Co. (1951) 108 Cal.App.2d 420, 422-423 [239 P.2d 42].)
 Leal contends she was falsely imprisoned by the Church at Boonville,
at Camp K, at Boulder, at Los Angeles, and at various locations in San Francisco.
fn. 16 She admits she was theoretically free to depart at any time; she
was not physically restrained, subjected to threats of physical force, or
subjectively afraid of physical force. She insists, however, that her "imprisonment
arose from the harm she came to believe would result if she left the community."
That harm, specifically, was that her family "would be damned in Hell
forever and they would forever feel sorry for having blown their one chance
to unite with the Messiah and make it to Heaven."
The claim cannot survive constitutional scrutiny. Although Leal correctly
asserts that false imprisonment may be "effected by ... fraud or deceit"
(Pen. Code, § 237), her theory implicates the Church's beliefs: it
plainly seeks to make the Church liable for threatening divine retribution.
As we stated earlier, such threats are protected religious speech (see Fowler
v. [46 Cal.3d 1124] Rhode Island, supra, 345 U.S. at p. 70 [97 L.Ed. at
p. 831]; Van Schaick v. Church of Scientology of Cal., Inc., supra, 535
F.Supp. at p. 1139) and cannot provide the basis for tort liability. Accordingly,
we hold the Court of Appeal correctly affirmed the summary judgment for
the Church as to Leal's action for false imprisonment.
[22a] Molko seeks restitution of his $6,000 gift to the Church. His claim
arises directly out of his fraud theory: he asserts that the Church deceived
him into unknowingly submitting to coercive persuasion, thereby obtaining
undue influence over him which it later used to extract the gift.
The Court of Appeal held that Molko could not challenge the validity
of the gift without challenging the validity of his former beliefs, which
is constitutionally forbidden. We disagree. fn. 17 Molko's assertion is
a natural extension of his fraud theory: he contends, in effect, that one
of his damages from the fraud was the $6,000 loss.
Undue influence is "the use, by one in whom a confidence is reposed
by another, or who holds a real or apparent authority over him, of such
confidence or authority for the purpose of obtaining an unfair advantage
over him." (Civ. Code, § 1575.)  Stated another way, undue
influence is "'that kind of influence or supremacy of one mind over
another by which that other is prevented from acting according to his own
wish or judgment'" (Bolander v. Thompson (1943) 57 Cal.App.2d 444,
448 [134 P.2d 924], italics added); it occurs when "one party uses
[its] dominant psychological position in an unfair manner to induce the
subservient party to consent to an agreement to which he would not otherwise
have consented" (Calamari & Perillo, The Law of Contracts (2d ed.
1977) pp. 274-275). [46 Cal.3d 1125]
[22b] We have already concluded, in the context of Molko's fraud claim,
that a triable issue of fact exists as to whether Molko lost his ability
to make independent decisions as a result of being deceived into submitting
unknowingly to coercive persuasion. It would be odd indeed, then, if we
did not find that a triable issue of fact exists as to whether, by means
of the alleged deception, the Church established and used its dominant psychological
position and its confidential relationship with Molko "for the purpose
of obtaining unfair advantage over him" with regard to his $6,000 gift.
We do so find, and accordingly hold that the Court of Appeal erred in
affirming the summary judgment for the Church as to Molko's claim for restitution.
VI. The Church's Cross-complaint Against Maxwell
The Church alleged that Maxwell's deprogramming activities violated the
federal and state civil rights of the Church and its members. (42 U.S.C.
§ 1985(3) [hereafter section 1985(3)]; Civ. Code, §§ 51.7,
52.) It also asserted a cause of action against Maxwell for full or partial
indemnity, on the theory that he, by kidnapping and deprogramming Molko,
had wholly or partially caused any damages for which the Church might be
held liable to Molko.
The trial court sustained without leave to amend Maxwell's demurrers
to all three causes of action, and entered judgments of dismissal for him.
The Court of Appeal reversed the judgments of dismissal on the state and
federal civil rights causes of action, holding that the court abused its
discretion by refusing leave to amend the complaint. Because it affirmed
the summary judgment for the Church in the action by Molko and Leal, it
did not review the dismissal of the Church's cause of action for indemnity.
A. The Federal Claim fn. 19
 The Church alleged that Maxwell conspired with others to deprive
it and its members of equal protection of the laws and of "equal privileges
and immunities under the laws." It contended Maxwell's purpose was,
inter alia, to prevent Church members from freely exercising their religious
beliefs through interstate travel. The Church sought injunctive relief as
well as [46 Cal.3d 1126] compensatory and punitive damages. In its appeal
to the Court of Appeal it abandoned its contention that it could assert
free exercise claims under section 1985(3), but continued to assert it had
representational standing to sue for a violation of its members' constitutionally
guaranteed right to travel. (Zobel v. Williams (1982) 457 U.S. 55 [72 L.Ed.2d
672, 102 S.Ct. 2309].) The Court of Appeal agreed and reversed the dismissal
on that ground.
Maxwell offers three arguments why his demurrer to the Church's federal
claim was properly sustained. As will appear, none is persuasive. First,
he contends the Church failed to meet the second of three requirements for
representational standing set forth in Hunt v. Washington Apple Advertising
Comm'n (1977) 432 U.S. 333, 343 [53 L.Ed.2d 383, 394, 97 S.Ct. 2434]. The
requirement in question is that "the interests [that the organization]
seeks to protect are germane to the organization's purpose." (Ibid.)
Maxwell asks us to infer from that requirement a test of the Church's status
as a bona fide religious organization: apparently he wishes to argue that
the Church is a political rather than religious organization, and that its
members' right to travel is somehow not germane to the organization's true
purpose. But the contention has no support in the law, and we decline to
adopt such a novel reading of a federal statute.
Second, Maxwell contends his demurrer was properly sustained because
a conspiracy to infringe First Amendment rights does not violate section
1985(3) unless either a state is involved in the conspiracy or the conspiracy
aims to influence the state's activity. While the contention correctly states
the Supreme Court's holding in Carpenters v. Scott (1983) 463 U.S. 825,
830 [77 L.Ed.2d 1049, 1055, 103 S.Ct. 3352], it overlooks the court's further
statement in Carpenters that in accordance with Griffin v. Breckenridge
(1971) 403 U.S. 88 [29 L.Ed.2d 338, 91 S.Ct. 1790], section 1985(3) does
reach purely private conspiracies aimed at depriving persons of the constitutionally
guaranteed right to travel. (Carpenters v. Scott, supra, 463 U.S. at pp.
832-833 [77 L.Ed.2d at pp. 1056-1057].) The Church alleges just such a conspiracy
here. fn. 20
Third, Maxwell contends the Church's federal cause of action was barred
by the state statute of limitations because it was subject to the one-year
[46 Cal.3d 1127] limitation period for personal injury claims set forth
in Code of Civil Procedure section 340, subdivision (2). However, as the
Court of Appeal correctly held, the Church seeks to amend its complaint
to seek injunctive relief only as to what it alleges to be an ongoing conspiracy
among Maxwell and the other cross-defendants. The statute of limitations
does not begin to run in civil conspiracy cases until the last overt act
of the conspiracy has been completed. (Wyatt v. Union Mortgage Co. (1979)
24 Cal.3d 773, 787 [157 Cal.Rptr. 392, 598 P.2d 45].) Thus, if a continuing
conspiracy is proved, the action is obviously timely; if no conspiracy is
proved, injunctive relief will be denied. The determinative issue is factual
and cannot be resolved by demurrer.
As stated above, the trial court sustained Maxwell's demurrer to the
Church's cause of action for indemnification, and entered a judgment of
dismissal; the Court of Appeal, because it affirmed the summary judgment
for the Church in plaintiffs' action for damages, did not address any of
the issues raised in the Church's appeal from the judgment of dismissal.
Because we reverse the summary judgment on the merits, however, those issues
are no longer moot.
The Church bases its indemnification action on the theory that Maxwell,
by kidnapping and deprogramming Molko, wholly or partially caused any damages
for which the Church might be held liable to Molko. The Church contends,
in other words, that if it is held liable to Molko as an intentional tortfeasor,
it should be allowed to seek indemnification from Maxwell as a concurrent
Thus the Church asks us to consider an issue of first impression -- whether
the equitable indemnity doctrine, as set forth by this court in American
Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [146 Cal.Rptr. 182,
578 P.2d 899], permits an intentional tortfeasor to obtain indemnity from
concurrent intentional tortfeasors on a comparative fault basis. We must
decline the invitation, however, because the facts in the present case would
not support such an action even if it were otherwise permitted.
 It is not sufficient, for purposes of indemnification, for a defendant
simply to claim someone else caused all or part of the plaintiff's damages.
To state a claim for indemnification, a defendant must allege that the same
harm for which he may be held liable is properly attributable -- at least
in part -- to the alleged indemnitor. (See, e.g., Rest.2d Torts, §
886B, subd. (1): "If two persons are liable in tort to a third person
for the same harm and one of them discharges the liability of both, he is
entitled to indemnity from the other ....") If a defendant believes
the plaintiff's injuries were the [46 Cal.3d 1128] result of a different
harm altogether, he may argue the point to the jury and escape liability
if successful. Absent some claim of mutual liability for the same harm,
however -- under joint-and-several or vicarious liability principles, for
example -- an indemnification action will not lie. (See American Motorcycle
Assn. v. Superior Court, supra, 20 Cal.3d 578 at p. 606 ["[W]e think
it only fair that a defendant who may be jointly and severally liable for
all of the plaintiff's damages be permitted to bring other concurrent tortfeasors
into the suit."].)
The Church claims not that Maxwell shares responsibility for any harm
the Church caused Molko through its alleged deception and coercive persuasion,
but rather that Maxwell's kidnapping and deprogramming of Molko were the
actual causes of Molko's damages -- i.e., that Molko's damages were the
result of a different harm than the one for which the Church might be held
liable. Although the Church may freely attempt to convince the jury that
Maxwell's actions rather than its own caused any damages Molko suffered,
it does not allege that it and Maxwell are in some way mutually liable for
the same harm; thus it does not state facts sufficient to support an indemnification
Accordingly, we leave for another day the question whether an intentional
tortfeasor may obtain indemnity from concurrent intentional tortfeasors
on a comparative fault basis.
For the reasons given above, we conclude as follows: On the complaint,
the judgment of the Court of Appeal is affirmed insofar as it affirms the
summary judgment for the Church on the cause of action for false imprisonment,
and reversed insofar as it affirms the summary judgment for the Church on
the causes of action for fraud, intentional infliction of emotional distress,
and restitution. On the cross-complaint, the judgment of the Court of Appeal
is affirmed insofar as it reverses the judgment of dismissal for cross-defendant
Maxwell on the cause of action for federal civil rights violations, and
insofar as it implicitly affirms the judgment of dismissal for Maxwell on
the Church's cause of action for indemnity.
Lucas, C. J., Broussard, J., Arguelles, J., Eagleson J., Kaufman, J.,
ANDERSON (Carl W.), J.,
Concurring and Dissenting.
I concur with the majority regarding the disposition of the false imprisonment
cause of action as well as the claims raised in the cross-complaint, but
respectfully [46 Cal.3d 1129] disagree with the reversal of summary judgment
in connection with the fraud, intentional infliction of emotional distress
and the restitution counts. I am strongly persuaded that the imposition
of tort liability for "heavenly deception" in proselytizing and
for its ensuing "systematic manipulation of social influences"
(religious persuasion) runs counter to established legal precedents and
the free exercise clause of the First Amendment. Furthermore, imposition
of liability in such cases constitutes bad legal policy, since it unnecessarily
projects the court into the arena of divining the truth or falsity of religious
beliefs. I respectfully suggest that the trial court's thorough analysis
and the Court of Appeal's well-reasoned affirmance thereof correctly apply
Under well-settled law, the necessary elements of fraud are: (1) misrepresentation
(false representation, concealment or nondisclosure); (2) knowledge of falsity
(scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable
reliance; and (5) resulting damage. (Seeger v. Odell (1941) 18 Cal.2d 409,
411 [115 P.2d 977, 136 A.L.R. 1291]; 4 Witkin, Summary of Cal. Law (8th
ed. 1974) Torts, § 446, p. 2711.) It is likewise recognized that in
order to render the fraud actionable, the misrepresentation or nondisclosure
must be not only the cause in fact (causa sine qua non), but also the legal
or immediate cause of the damages. Indeed, the majority quite agrees: "Justifiable
reliance exists when the misrepresentation or nondisclosure was an immediate
cause of the plaintiff's conduct which alters his legal relations, and when
without such misrepresentation or nondisclosure he would not, in all probability,
have entered into the contract or other transaction. (Wennerholm v. Stanford
Univ. Sch. of Med. (1942) 20 Cal.2d 713, 717 [128 P.2d 522, 141 A.L.R. 1358];
Spinks v. Clark (1905) 147 Cal. 439, 444 [82 P. 45].)" (Italics added.)
However, contrary to the conclusion reached by the majority, I find appellants'
fraud cause of action fatally defective for two fundamental reasons: (1)
the record fails to show that the initial fraud committed by the proselytizers
was relied upon by appellants at the crucial time of joining the Church;
and (2) the immediate cause of appellants' damages was not the incipient
fraud but rather the ensuing indoctrination and conversion (dubbed by the
majority as "brainwashing"). However, the indoctrination achieved
by persuasion absent physical force or violence is not unlawful; religious
conversion is simply not subject to judicial review. It follows that neither
of these questions creates a triable issue of fact which defeats the grant
of summary judgment.
A. Reliance on Initial Misrepresentations
In granting summary judgment on the fraud cause of action, the trial
court found that appellants, by their own admissions, joined the Unification
[46 Cal.3d 1130] Church (Church) because that "Association satisfied
personal concerns and anxieties both were experiencing"; it did not
find they joined in reliance on the initial misrepresentations of the recruiters.
This finding of the trial court is well supported by the record.
Molko's deposition reveals that his reason for accepting the invitation
to participate was to improve himself and to become a better person. As
early as the second day spent in Boonville, Molko already felt involved
and was attracted to the group because of the brotherly love experienced
there. Although the regimented life was not entirely to his liking, he stayed
there because: (1) he was thinking about the meaning of his life; (2) he
was curious; and (3) he wanted to know people better, especially Bethie
Rubenstein and Gloria LaGrasse who were "fascinating, intelligent --
a joy to be with." On learning within less than two weeks that the
group belonged to the "Moonies," Molko (while admittedly confused
a bit) took a "wait and see" attitude, remained with the group
and repeatedly rejected calls coming from friends and parents imploring
him to quit.
Leal accepted the initial invitation also for personal reasons. She had
little emotional and psychological support from her family and was longing
for affection and understanding. She left San Diego, a "cold and impersonal"
city in search of a community. She went to Boonville to "learn how
a community gets together to actually accomplish something." By the
fourth day she felt completely involved. She was attracted by the sincere,
affectionate attention she received from the group and stayed there because
she was happy and grew attached to the group which overwhelmed her with
praise and love and promised to take care of her and provide all the things
she had ever wanted. In addition, she was impressed by the commitment and
hard work of the others, and was anxious to prove herself worthy of their
attention. Also, she found the relinquishment of individual responsibility
and the acceptance of a group identity to be true happiness, akin to "the
joy of childhood." In her own words: "Departing from Boonville
was prevented as a result of large doses of attention and listening and
care such as that between highly expressive, loving friends or family."
Despite these undisputed facts the majority maintains that appellants'
behavior following the initial fraud did not negate the element of reliance
(i.e., the initial fraud was not "cured"); they conclude that
as a result of the Church's initial "heavenly deception" (i.e.,
fraudulent conduct), appellants were placed in a situation where they were
"brainwashed" and thereby deprived of their independent judgment.
The majority predicates this "brainwashing" theory primarily upon
appellants' declarations that due to the rigid indoctrination, psychological
and emotional pressure, they lost their ability to freely decide to stay
with the group and, instead, they acted in a robot-like manner. Such conclusion
fails to withstand critical analysis. [46 Cal.3d 1131]
Under the widely adopted view, the fact that the religious belief does
not originate in a voluntary choice does not, as a rule, raise a presumption
of incapacity to affirm the belief as one's own. (Shapiro, "Mind Control"
or Intensity of Faith: The Constitutional Protection of Religious Beliefs
(1978) 13 Harv. Civ. Liberties L.Rev. 751, 789.) To the contrary, it has
been said that "An intentional deception should not justify impinging
upon a convert's ideas, so long as the convert has the ability to affirm
his faith after the deception is realized. If he retains his personhood
[i.e., the capacity to evaluate the commitment], ... he can still adopt
or ratify the beliefs as his own." (Shapiro, Of Robots, Persons and
the Protection of Religious Beliefs (1982-1983) 56 So.Cal.L.Rev. 1277, 1295.)
By illustration, Mr. Shapiro points out that if the proselytizer had offered
merely a self-improvement course and the subsequent banquet and lectures
in fact had aimed at converting the recruit to a religion, the deceptiveness
of the introduction would be immaterial as long as the convert would be
still capable of adopting or affirming his belief. (Ibid.)
The evidence before us, including appellants' depositions, clearly indicates
that the Church's indoctrination did not render appellants mindless puppets
or robot-like creatures. Instead, it shows that both before and after the
disclosure of the group's true identity, both appellants retained their
ability to think, to evaluate the events and to exercise their independent
judgment. For example, the record reveals that on the first two days in
Boonville Molko became so dissatisfied with the regimented life that he
decided to return to San Francisco. He discussed his decision with two other
members of the group. While he was advised that he was free to leave, he
decided to stay because he was persuaded that it was to his own benefit
to do so. Also, during the first week in Boonville Molko expressed with
other people (although in private) his resentment about the lectures and
regimentation and on noticing that he was being followed by Joe Taylor,
a Church member, he violently confronted him, threatening to smash him in
the face. After learning that the group was connected with the Church, Molko
did not simply acquiesce, but rather consulted Gloria, and his decision
to stay was again the result of an evaluation of this turn of events. Lastly,
despite all the lectures, discussion and other forms of indoctrination,
Molko still doubted that Reverend Moon was the new Messiah and he shared
his doubts with other Church members as well, including Gloria and Victoria.
The deposition testimony of appellant Leal is likewise replete with facts
indicating that her joining the Church did not rest upon reliance on the
initial representation, but rather her conscious evaluation and adoption
of the Church's teachings. In view of this sworn testimony, the unsupported
allegations of brainwashing in appellants' pleadings and declarations should
[46 Cal.3d 1132] not be deemed sufficient to raise that triable issue of
material fact which requires reversal of the grant of summary judgment.
B. Conversion Is the Immediate Cause of Damages
Reversal of summary judgment is improper for the additional reason that
the immediate cause of damages was not the incipient fraud, i.e., heavenly
deception, but rather the ensuing indoctrination effected by "brainwashing"
which ultimately resulted in appellants' conversion. That the gist of appellants'
fraud complaint was that the conversion was achieved by actionable "brainwashing"
is manifest. Indeed, the majority so defines the issue (ante, at p. 1109):
"Molko and Leal therefore contend that a triable issue of fact remains
as to whether the Church brainwashed them prior to disclosing its identity.
If the answer is affirmative, they urge, they have established justifiable
reliance." Again, the majority declares that appellants' "statements
are consistent with the contention that they were deceived into a situation
in which they were then brainwashed" and summary judgment on the fraud
count must be overturned because the brainwashing theory advanced in appellants'
declarations presented a triable issue of fact. This same notion not unsurprisingly
has its genesis in appellants' briefs. For example, Molko asserts in his
opening brief that "By means of deceits and deceptions utilized in
order to place plaintiff in Boonville, plaintiff was abruptly thrust into
an environment directed entirely toward the conversion of plaintiff's allegiance
to accept Sun Myung Moon as the Messiah and to become a member of the Unification
Church .... The conversion of plaintiff occurred in an unusual place."
(Italics partially added.) Amici curiae likewise emphasize that the immediate
cause of damages was the process of conversion which has been known by many
labels -- brainwashing, thought reform, coercive persuasion, etc.
Identification of the indoctrination (i.e., "brainwashing")
and the conversion as the critical issues for determining the applicability
of summary judgment carries far-reaching legal significance. For under settled
law the indoctrination methods employed in obtaining conversion (including
coercive persuasion, mind control and/or brainwashing) are not actionable
per se; religious conversion is not subject to judicial scrutiny regardless
of the methods used because such scrutiny necessarily entails the questioning
of religious faith -- scrutiny that is absolutely forbidden by the First
Amendment. Moreover, even if judicial scrutiny were permitted, governmental
interference in this case is not warranted.
(1) The Indoctrination Is Not Actionable
The primary cases holding that religious indoctrination, even if achieved
by "brainwashing," is not tortious if unaccompanied by physical
force or [46 Cal.3d 1133] threat are Lewis v. Holy Spirit Ass'n for Unification
(D.Mass. 1983) 589 F.Supp. 10; Meroni v. Holy Spirit Ass'n for Unification
(1986) 119 App.Div.2d 200 [506 N.Y.S.2d 174]; and Application of Conversion
Center (1957) 388 Pa. 239 [130 A.2d 107].
The Lewis plaintiff, a former member of the Unification Church, brought
a tort action against the Church alleging, inter alia, that he was subjected
to brainwashing and that as a result thereof he suffered psychiatric disorders.
In dismissing plaintiff's tort claims, the court stated: "Both of the
plaintiff's claims in tort are seriously flawed. Indoctrination and initiation
procedures and conditions of membership in a religious organization are
generally not subject to judicial review [citations]. Similarly, the plaintiff
has not indicated any precedent for recognition of the tort of brainwashing,
and my own research has revealed none." (Lewis v. Holy Spirit Ass'n
for Unification, supra, 589 F.Supp. at p. 12.)
In Meroni, the plaintiff's son entered the training and indoctrination
program of the Unification Church; after one month he left the program and
committed suicide. In an action against the Church plaintiff purported to
state causes of action in tort contending that the decedent, an emotionally
disturbed youth, was subjected to highly programmed behavior techniques
(such as intensive physical exercises, isolation, lectures, confession,
strict work and study schedules) as a result of which he was brainwashed.
In dismissing the action the court opined that the indoctrination methods
of the Church were not tortious. "The conduct of the defendant Unification
Church ... which the plaintiff seeks to classify as tortious, constitutes
common and accepted religious proselytizing practices, e.g., fasting, chanting,
physical exercises, cloistered living, confessions, lectures, and a highly
structured work and study schedule. To the extent that the plaintiff alleges
that the decedent was 'brainwashed' as a result of the church's program,
this claim must be viewed in the context of the situation as a whole, i.e.,
as a method of religious indoctrination that is neither extreme nor outrageous
...." (Meroni v. Holy Spirit Ass'n for Unification, supra, 506 N.Y.S.2d
at p. 177.) In finding the brainwashing nontortious in the absence of physical
violence or mental torture, the court remarked: "It is important to
note that no facts are set forth which would warrant the conclusion that
the plaintiff's decedent was falsely imprisoned by the appellant or that
he was subjected to any form of violence, or physical or mental torture,
as such. The claim of brainwashing is based upon the activities heretofore
described, which, as previously noted, are commonly used by religious and
other groups, and are accepted by society as legitimate means of indoctrination.
They are not classifiable as so extreme or outrageous, or offensive to society,
as to incur liability therefor." (Id., at pp. 177-178, italics added.)
In Application of Conversion Center, supra, 130 A.2d 107, the court recognized
that persuasion is an integral part of many religious organizations and
[46 Cal.3d 1134] a positively protected aspect of the free exercise of religion:
"The 14th Amendment of the Constitution of the United States which
incorporates the 1st Amendment, guarantees the free exercise of religion
.... Not only is a citizen of this country entitled to the free expression
of his religious beliefs, but he may by peaceful persuasion endeavor to
convert others thereto and we are aware of no bar to individuals organizing
to effectuate their guaranteed rights in this regard. ... '... Propagation
of belief -- or even of disbelief in the supernatural -- is protected whether
in church or chapel, mosque or synagogue, tabernacle or meetinghouse. ...'"
(Id., at p. 110, italics added.)
(2) The Conversion Is Not Actionable
The majority concedes that the free exercise clause of the First Amendment
provides absolute protection for religious beliefs (Cantwell v. Connecticut
(1940) 310 U.S. 296, 303-304 [84 L.Ed. 1213, 1217-1218, 60 S.Ct. 900, 128
A.L.R. 1352]); that the government cannot discriminate against individuals
or groups because they hold views abhorrent to the authorities (Fowler v.
Rhode Island (1952) 345 U.S. 67, 70 [97 L.Ed. 828, 831, 73 S.Ct. 526]);
and that while the court can inquire into the sincerity of an individual's
beliefs, it may not judge the truth or falsity of those beliefs (United
States v. Ballard (1944) 322 U.S. 78, 86-88 [88 L.Ed. 1148, 1153-1155, 64
S.Ct. 882]). However, the majority concludes that while religious belief
is absolutely protected, religious conduct is not (Sherbert v. Verner (1963)
374 U.S. 398, 402-403 [10 L.Ed.2d 965, 969-970, 83 S.Ct. 1790]; People v.
Woody (1964) 61 Cal.2d 716, 718 [40 Cal.Rptr. 69, 24, 28-36, 394 P.2d 813]);
that conduct even if religiously motivated is subject to regulation for
the protection of society (Cantwell v. Connecticut, supra, 310 U.S. at p.
304 [84 L.Ed. at p. 1218]); and that the Church's initial fraud which led
to the brainwashing of appellants was conduct which, under the balancing
test required by the First Amendment, can be penalized with tort sanctions
based upon a compelling state interest (Wisconsin v. Yoder (1972) 406 U.S.
205, 214, 221-235 [32 L.Ed.2d 15, 92 S.Ct. 1526]).
I respectfully submit that this reasoning is flawed. To begin with, the
conduct which according to the majority constitutes a triable issue of fact
is not only the initial fraud (an act clearly subject to proof), but also
the subsequent "brainwashing" and conversion -- matters comprising
not only sociological or psychological phenomena, but also involving intangible
elements of religious belief. It follows that brainwashing and conversion
are so inextricably intertwined with religious faith that they cannot be
scrutinized, much less proven, without questioning the authenticity of the
religious teachings of the Church. (See detailed discussion, infra.) Such
inquiry is absolutely proscribed by the free exercise clause of the First
The proposition that the act or conduct of a religious organization or
its members is immune from judicial scrutiny if the proof thereof calls
into [46 Cal.3d 1135] question the truth or falsity of religious faith is
well established in case law as well as in legal commentary.
United States v. Ballard, supra, 322 U.S. 78, the leading case defining
the parameters of the constitutional protection of religious faith, dealt
with prosecution of religious fraud. Therein it was alleged that respondents,
founders of the "I am" movement, fraudulently represented that
they were divine messengers; that they had miraculous powers to heal all
diseases and, in fact, had cured hundreds of afflicted people; and that
as a result of these misrepresentations, they obtained money from the public
through the mail. The trial court excluded from jury consideration the issue
of the truth or falsity of respondents' claim of divine designation and
miraculous powers, and the case was submitted on the sole issue of whether
respondents made those claims in good faith. In approving the trial court's
ruling, the Supreme Court reasoned: "Freedom of thought, which includes
freedom of religious belief, is basic in a society of free men. [Citation.]
It embraces the right to maintain theories of life and of death and of the
hereafter which are rank heresy to followers of the orthodox faiths. Heresy
trials are foreign to our Constitution. Men may believe what they cannot
prove. They may not be put to the proof of their religious doctrines or
beliefs. Religious experiences which are as real as life to some may be
incomprehensible to others. Yet the fact that they may be beyond the ken
of mortals does not mean that they can be made suspect before the law. Many
take their gospel from the New Testament. But it would hardly be supposed
that they could be tried before a jury charged with the duty of determining
whether those teachings contained false representations. The miracles of
the New Testament, the Divinity of Christ, life after death, the power of
prayer are deep in the religious convictions of many. If one could be sent
to jail because a jury in a hostile environment found those teachings false,
little indeed would be left of religious freedom. The Fathers of the Constitution
were not unaware of the varied and extreme views of religious sects, of
the violence of disagreement among them, and of the lack of any one religious
creed on which all men would agree. They fashioned a charter of government
which envisaged the widest possible toleration of conflicting views. Man's
relation to his God was made no concern of the state. He was granted the
right to worship as he pleased and to answer to no man for the verity of
his religious views. The religious views espoused by respondents might seem
incredible, if not preposterous, to most people. But if those doctrines
are subject to trial before a jury charged with finding their truth or falsity,
then the same can be done with the religious beliefs of any sect. When the
triers of fact undertake that task, they enter a forbidden domain."
(Id., at pp. 86-87 [88 L.Ed. at p. 1154], italics added.)
Another analogous case involving religiously motivated fraud is Founding
Church of Scientology v. United States (D.C. Cir. 1969) 409 F.2d 1146 [46
Cal.3d 1136] [133 App.D.C. 299, 13 A.L.R.Fed. 721]. In Founding Church,
appellants (Church of Scientology and its adherents) were charged with false
and misleading labeling under the Federal Food, Drug and Cosmetic Act (21
U.S.C. § 301 et seq.), based upon their representation that the Hubbard
Electrometer (E meter) can cure both bodily and mental ailments. fn. 1 The
government seized the electric instruments and religious literature describing
church doctrine and alleged that they were the instrumentalities by which
the fraud was committed. At trial the government introduced expert evidence
showing that the E meter was of no use in the diagnosis and treatment of
any disease or mental disorder (i.e., that the church's representations
were false), and it also introduced thousands of pages of scientology literature
relevant to the issue of mislabeling. Based thereon, the jury found appellants
guilty of false and misleading labeling. The Court of Appeal reversed in
concluding that under Ballard expert testimony was not admissible to disprove
appellants' representations and that the religious Scriptures of the church
were not subject to courtroom evaluation. Significantly enough, the court
noted: "The statements concerning the powers of auditing over the ills
of mind and body are not readily separable from general statements of Scientological
doctrines concerning the nature of man and the relationship of his mind
to his body. Many will find these doctrines, those which relate to health
as well as those which do not, absurd or incoherent. But the Ballard case
makes suspect the legal inquisition of such doctrines where they are held
as religious tenets." (Id., at p. 1159.)
Even more analogous to this case is Katz v. Superior Court (1977) 73
Cal.App.3d 952 [141 Cal.Rptr. 234], in which the parents of Unification
Church members brought an action for conservatorship: they claimed that
their children were subjected to coercive persuasion and brainwashing through
food and sleep deprivation, isolation, fear tactics, use of guilty feelings
and indoctrination; they offered psychiatric and psychological expert evidence
to establish such claims. The Katz court was unwilling to inquire into the
merit of the assertions because it felt the evaluation of evidence relevant
to whether the change in the individual's life style was effected by brainwashing
or religious faith, necessarily requires an investigation and questioning
of the validity of that faith. (Id., at pp. 987-988.)
The majority's effort to distinguish Katz from the case at bench is not
persuasive. While Katz arose, indeed, in a somewhat different legal setting
(i.e., the action was brought by the parents rather than ex-church members;
they were seeking conservatorship orders under Prob. Code, § 1751;
and their purpose was to deprogram their children, etc.), the pivotal issue
was [46 Cal.3d 1137] the same: were the children brainwashed by the church
and was their brainwashing subject to proof in a court proceeding?
I respectfully disagree with the majority's suggestion that the primary
assertion here, as opposed to Katz, is the initial fraud in recruiting,
and is therefore conduct which can be judicially scrutinized. From their
language, however, it clearly appears that the wrongful conduct which is
at the core of the controversy is the fraudulently induced brainwashing.
fn. 2 However, as the majority admits, the first part of the issue (i.e.,
the knowing misrepresentation of the Church's identity and the intent to
induce appellants to participate in the Church's activities) is conceded
by the Church. The remaining triable issue of fact is therefore limited
to the alleged "brainwashing" which resulted in appellants' conversion
and their joining the Church. What fact is it that the majority remands
to be determined at trial? The same fact that Katz found immune from judicial
scrutiny, i.e., was the conversion (or "brainwashing") induced
by coercive indoctrination or by religious persuasion? That such question
is not for mortal courts to resolve is unequivocally answered by Katz: No
such proof or judicial inquiry is possible without questioning the person's
underlying faith -- an inquiry which is absolutely forbidden by the First
The teachings of Katz that "brainwashing" and religious conversion
are not really distinguishable; that the methods used in each are either
identical or very similar; and that proof of the existence of each is virtually
identical are well illustrated by the present case. The expert testimony
here was offered to show that the brainwashing of appellants was achieved
by "a systematic manipulation of social influences" which consisted
mainly of the following: (1) control over the social and physical environment;
(2) separation of the recruits from the outside world (including friends
and family members); (3) influencing individual behavior through rewards,
punishments and experiences; (4) oppression of criticism of the Church;
and (5) attainment of a special uniform state of mind. However, as demonstrated
below, all of these methods are used by the more widely accepted and/or
tolerated churches in effecting religious conversion.
The effect of conversion, generally speaking, is spiritual rebirth --
that is, attainment of a new life. The first step in that direction is a
separation from the previous environment to a place where one can meditate
and contemplate without distraction. Our world's numerous monasteries and
convents demonstrate how retreat and isolation can promote single-minded
devotion [46 Cal.3d 1138] to God. The separation from friends and family
members may be an important step in achieving this goal. Jesus Christ is
quoted as saying: "He who loves father or mother more than me is not
worthy of me." (Matthew, 10:34-38.) The Mennonites likewise teach that
true Christians must be prepared to take upon themselves the cross of Christ,
and forsake father, mother, husband, wife, children, possessions and the
self, for the sake of the testimony of His Holy Word when the honor and
praise of God require it. (J. Wenger, Glimpses of Mennonite History and
Doctrine (2d ed. 1947).) Although transcending one's family may be traumatic
and painful, it is sometimes an essential element in the pilgrimage of faith.
The guilt and awareness of sin also may be an important factor leading to
conversion. The promise of salvation and the threat of damnation are the
very foundation of the life of the devout. Ascetic, regulated life, hard
work, fasting and giving up earthly pleasures are also parts of many religious
teachings aimed at spiritual purity and pleasing God. The dogmatic approach
and intolerance of criticism are not uncommon with established religions
which profess that divine truth is revealed in Holy Scriptures, church dogmas
and in ex cathedra declarations of anointed leaders (e.g., papal infallibility
in the Catholic Church) which is not to be questioned by faithful followers.
Finally, the introverted view forsaking interest in the outside world necessarily
flows from the religious teaching that one must separate himself or herself
from the world dominated by Satan and his evil forces in order to join and
serve God's kingdom.
Indeed, what this expert evidence characterizes as indicia of brainwashing
or mind control, might very well be equated with the more popularly accepted
symptoms of genuine religious conversion. Religious behavioral change induced
by the mystery of faith cannot be proved or disproved by secular science,
which limits its scope of inquiry to tangible, rational and logical phenomena,
comprehensible and explainable by human reasons. As Mr. Shapiro states in
his essay: "Religious beliefs -- whether held by adherents to new sects
or by 'mainstream' believers -- may not be dictated by societal norms. Such
norms can easily encourage labels that transform religious beliefs into
illnesses. 'A religion becomes a cult; proselytization becomes brainwashing;
persuasion becomes propaganda; missionaries become subversive agents; retreats,
monasteries, and convents become prisons; holy ritual becomes bizarre conduct;
religious observance becomes aberrant behavior; devotion and meditation
become psychopathic Persons, and the Protection of Religious Beliefs, trances.'"
(Shapiro, Of Robots, supra, 56 So.Cal.L.Rev. at pp. 1316-1317, fn. omitted.)
A similar analysis has been advanced by Justice Jackson: "[religious]
experiences, like some tones and colors, have existence for one, but none
at all for another. They cannot be verified to the minds of those whose
field of consciousness does not include religious insight. When one comes
to trial which turns on any aspect of [46 Cal.3d 1139] religious belief
or representation, unbelievers among his judges are likely not to understand
and are almost certain not to believe him. ... Prosecutions of this character
easily could degenerate into religious prosecution." (United States
v. Ballard, supra, 322 U.S. at pp. 93, 95 [88 L.Ed. at pp. 1157, 1158] [dis.
opn. of Jackson, J.].) fn. 3
(3) The Church's Conduct Is Not so "Outrageous" as to Be Subject
to Governmental Regulation
Case law teaches that overt acts or conduct connected with the exercise
of religion are subject to governmental interference only if the conduct
poses substantial threat to the public safety, peace or order. As the Supreme
Court stated: "'only the gravest abuses, endangering paramount interest
give occasion for permissible limitation.'" (Sherbert v. Verner, supra,
374 U.S. at p. 406, italics added.) This was reiterated in Wisconsin v.
Yoder, supra, 406 U.S. at page 215 [32 L.Ed.2d at p. 25]: "[O]nly those
interests of the highest order and those not otherwise served can overbalance
legitimate claims to the free exercise of religion." (Accord Thomas
v. Review Bd. Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 717-718 [67 L.Ed.2d
624, 633-634, 101 S.Ct. 1425], italics added.)
The majority opinion rests on a theory of fraudulently induced brainwashing.
However, the conduct of "brainwashing" itself is not actionable
because that method is commonly employed by religious groups, and it fails
to constitute that outrageous conduct which goes beyond the limits of social
toleration. (Meroni v. Holy Spirit Ass'n, supra, 506 N.Y.S.2d 174; see also
Christofferson v. Church of Scientology (1981) 57 Ore.App. 203 [644 P.2d
577, 584, 40 A.L.R.4th 1017].) Thus, the critical issue is whether the act
of brainwashing becomes tortious because it was preceded by the wrongful
act of "heavenly deception" employed in recruiting.
It bears emphasis, and indeed the majority concedes, that the claimed
deceptions, although secular on the surface, are clearly "rooted in
religious belief." (Wisconsin v. Yoder, supra, 406 U.S. at p. 215 [32
L.Ed.2d at p. 25].) It is settled that the Constitution guarantees not only
the free exercise of [46 Cal.3d 1140] religion, but also protects certain
acts undertaken in furtherance of these religious beliefs. Included among
these acts are the proselytizing and indoctrination activities of religious
organizations. As explained in McDaniel v. Paty (1978) 435 U.S. 618, 626
[55 L.Ed.2d 593, 600, 98 S.Ct. 1322]: "the right to the free exercise
of religion unquestionably encompasses the right to preach, proselyte, and
perform other similar religious functions." Turner v. Unification Church
(D.R.I. 1978) 473 F.Supp. 367 further teaches that indoctrination and the
motivation of one who joins a religious group usually cannot be judicially
scrutinized and that only "the 'operational activities' of a religion,
those activities that are not solely in the ideological or intellectual
realm, [that] are subject to judicial review and may be regulated to achieve
a sufficiently important state objective. [Citations.]" (Id., at pp.
371-372.) The examples listed by the majority for the permissibility of
government interference with religious affairs are consistent with Turner
inasmuch as they all involve operational activities of the religious organization
(i.e., law against polygamy, distribution of religious literature, compulsory
vaccinations, license for religious parades, denial of tax exempt status,
etc.), rather than intellectual or doctrinal matters, such as proselytizing
Thus, a persuasive argument may be made that the principal wrong here
claimed (i.e., "heavenly deception" in recruiting) is not subject
to government intervention at all, because it includes doctrinal matters
rather than operational activities. But even if we assume that such acts
are purely "secular" in nature and may properly be regulated by
government, they fail to amount to an abuse of such magnitude that would
justify government interference under the strict balancing test prescribed
by law. This is so because the First Amendment ensures wide protection for
religious persuasion which may encompass not only exaggeration, but also
outright falsehood. As stated in Cantwell v. Connecticut, supra, 310 U.S.
at p. 310 [84 L.Ed. at p. 1221]: "In the realm of religious faith,
and in that of political belief, sharp differences arise. In both fields
the tenets of one man may seem the rankest error to his neighbor. To persuade
others to his own point of view, the pleader, as we know, at times, resorts
to exaggeration, to vilification of men who have been, or are, prominent
in church or state, and even to false statement. But the people of this
nation have ordained in the light of history, that, in spite of the probability
of excesses and abuses, these liberties are, in the long view, essential
to enlightened opinion and right conduct on the part of the citizens of
a democracy." (Italics added.)
In sum, I am firmly convinced that since "heavenly deception"
and its ensuing "brainwashing," fail to constitute those gravest
abuses, this court is powerless to impose tort sanctions thereon.
Finally, I find an additional reason for holding that imposition of tort
sanctions is particularly inappropriate in the present instance. Case law
[46 Cal.3d 1141] emphasizes that only a compelling governmental interest
supported by ample evidence can justify state regulation of religious practices.
(Wisconsin v. Yoder, supra, 406 U.S. at pp. 215, 224-225 [32 L.Ed.2d at
pp. 25, 30-31].) In the case at bench, the State of California has made
no claim that such governmental interest exists, nor has it enacted any
statute or regulation purporting to restrict the practices at issue. When
scrutinizing conduct which is ostensibly subject to constitutional protection
and which can be regulated only by showing a compelling state interest,
the judiciary should tread cautiously in independently creating such governmental
interest without any prior consideration by the Legislature. The Legislature
is far better equipped than this court to undertake the factual investigation
and to formulate the social policies which justify restrictions on exercising
religious freedoms. Indeed, in the overwhelming majority of cases courts
have merely upheld state regulations curbing religious conduct rather than
creating such regulation. The majority's creation of this new tort liability
in such an historically heretofore sensitive area, without either legislative
initiative or guidance, constitutes judicial activism of the first degree.
II. Intentional Infliction of Emotional Distress
The elements of a cause of action for intentional infliction of emotional
distress are: (1) outrageous conduct by the defendants; (2) intention to
cause or reckless disregard of the probability of causing emotional distress;
(3) severe emotional suffering; and (4) actual and proximate causation of
the emotional distress. (Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d
288 [131 Cal.Rptr. 547], disapproved on other grounds in Marina Point, Ltd.
v. Wolson (1982) 30 Cal.3d 721, 740, fn. 9 [180 Cal.Rptr. 496, 640 P.2d
115, 30 A.L.R.4th 1161]; Rest.2d Torts, § 46.) The conduct is deemed
extreme and outrageous when it exceeds "'"all bounds [of decency]
usually tolerated by a decent society, [and is] of a nature which is especially
calculated to cause, and does cause, mental distress. ..."'" (Cole
v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155, fn. 7 [233
Cal.Rptr. 308, 729 P.2d 743].) In order to successfully resist a motion
for summary judgment the plaintiff must sustain each element of the cause
of action; conversely, the defendant is entitled to summary judgment if
proof of any one element is lacking. (Stationers Corp. v. Dun & Bradstreet
(1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785].)
Respondents herein contended that the emotional distress cause of action
was inherently defective because the Church's conduct was not outrageous
within the meaning of the law. The majority has rejected this argument by
finding that the very same wrong (i.e., the fraudulent inducement of appellants
into an atmosphere where they could be brainwashed), served as the foundation
of both the fraud and the emotional distress causes of action because the
conduct complained of was both extreme and outrageous. I [46 Cal.3d 1142]
respectfully submit that the conclusion of the majority is erroneous and
unsupported by legal authorities.
As discussed above, appellants failed to state actionable wrong on the
fraud count. A fortiori, the same allegedly fraudulent conduct cannot furnish
the legal premise for the emotional distress cause of action.
But even if the fraud cause of action were valid, it would not, ipso
facto, constitute outrageous conduct giving rise to recovery for causing
severe emotional distress. The bootstrapping reasoning of the majority that
the very same fraudulent conduct automatically produces a double cause of
action (i.e., for fraud as well as for intentional infliction of emotional
distress) has been unequivocally rejected by persuasive case authorities.
For example, in LeCroy v. Dean Witter Reynolds, Inc. (E.D.Ark. 1984)
585 F.Supp. 753, plaintiff brought an action for fraud and intentional infliction
of emotional distress growing out of defendant's intentional misrepresentation
and wilful concealment in connection with selling securities. The court
rejected plaintiff's emotional distress claim by stating: "The Court
recognizes that deception and fraud associated with the sale of securities
can, on occasion, create emotional distress. Moreover, a broker's repeated
use of such unsavory business methods purely in the pursuit of exploitation
and financial gain can offend the conscience of the average citizen. Yet
... mere fraud in connection with the sale of securities does not ipso facto
make out a prima facie case for intentional infliction of emotional distress.
Unless the defendant's acts are truly outrageous, an action for intentional
infliction of emotional distress will not lie." (Id., at p. 766, italics
In referring to Restatement Second of Torts section 46, comment d, the
court emphasized that "'Liability has been found only where the conduct
has been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.'" (LeCroy v. Dean
Witter Reynolds, Inc., supra, 585 F.Supp. at pp. 763-764, italics omitted.)
In Barrett v. Farmers & Merchants Bank (Ala. 1984) 451 So.2d 257,
plaintiff instituted an action against defendant bank and its vice president
to recover damages for wantonness, outrage, fraud and conversion in connection
with the payment of life insurance policy proceeds. In ruling against plaintiff,
the court held that the tort of outrageous conduct was not established by
a showing of mere fraud; rather, it should have been shown that defendant's
conduct was such as not to be tolerated in a civilized society. (Id., at
In Christofferson v. Church of Scientology, etc., supra, 644 P.2d 577,
a case factually close, plaintiff complained that defendant church took
control [46 Cal.3d 1143] of her mind and forced her into life service by
way of fraudulent representations. In rejecting plaintiff's claim premised
on intentional infliction of emotional distress, the court emphasized: "Plaintiff
was recruited and indoctrinated into the Church of Scientology. That recruitment
and indoctrination ... were not so very different than might be used by
any number of organizations. She joined the group voluntarily, albeit, as
she claims, on the basis of misrepresentations made to her. However, she
continued to participate and maintained her involvement for whatever reason
without actionable threat or coercion by defendants." (Id., at pp.
590-591.) "If misrepresentations were made regarding the benefits or
nature of Scientology ... her remedy would be for fraud, not outrageous
conduct." (Id., at p. 590.)
And finally, in Meroni v. Holy Spirit Assn. for Unification, supra, 506
N.Y.S.2d 174, the court was confronted with the nearly identical issue,
i.e., whether brainwashing by defendant Unification Church constituted outrageous
conduct rendering it liable for intentional infliction of emotional distress.
In finding it did not, the court emphasized that no outrageous conduct has
been presented inasmuch as "The plaintiff has failed to demonstrate
that the recruitment and indoctrination techniques used by the appellant,
which are similar to those used by a number of other organizations 'go beyond
all possible bounds of decency, and [are] to be regarded as atrocious, and
utterly intolerable in a civilized community' ...." (Id., at p. 177.)
Finally, I find myself in profound disagreement with the reversal of
summary judgment on the restitution count. The majority's ruling as to this
issue rests on the theory of fraud (fraudulent inducement to facilitate
brainwashing) and undue influence. fn. 4 However, neither of these theories
support the cause of action at issue.
The uncontroverted evidence provided by Molko clearly demonstrates that
he made the gift of $6,000 out of a then-held religious belief. Thus, Molko
explained that he gave the money to the Church to please God, the Heavenly
Father, and that he had not asked that the money be returned while a member
of the Church, because he had been afraid of the evil forces and felt guilty
of demanding back something he had given to God. fn. 5 I quite [46 Cal.3d
1144] agree with the trial court's finding: "Careful review of Mr.
Molko's deposition testimony negates the conclusionary allegations contained
in the Complaint." Molko made his gift after careful consideration
and consultation with one of the two Church members in whom he had the greatest
confidence. fn. 6 That he did not part with all his savings further negates
the conclusionary allegations of undue influence in his complaint and indisputedly
establishes the gift as a product of his free will. fn. 7
Since this gift was indisputably prompted by religious beliefs, and the
issue of fraudulent inducement cannot be determined without inquiring into
the truth or falsity of such beliefs, the theory of fraud as a ground justifying
restitution cannot be judicially entertained without transgressing the free
exercise clause of the First Amendment. (See detailed discussion, supra.)
This same reasoning is equally applicable to the undue influence theory
of recovery; as with the theory of fraudulent inducement, it is so intricately
interwoven with religiously held beliefs that it cannot be proven without
questioning the verity of underlying religious doctrines. (Estate of Supple
(1967) 247 Cal.App.2d 410 [55 Cal.Rptr. 542].)
That civil courts may not entangle themselves in religious disputes arising
between disgruntled ex-church members and the Church, is well supported
by case law as well as by legal scholars. In Watson v. Jones (1872) 80 U.S.
679, 731 [20 L.Ed. 666, 677], the United States Supreme Court emphasized:
"'the judicial eye cannot penetrate the veil of the church for the
forbidden purpose of vindicating the alleged wrongs of excised members;
when they became members they did so upon the condition of continuing or
not as they and their churches might determine, and they thereby submit
to the [46 Cal.3d 1145] ecclesiastical power and cannot now invoke the supervisory
power of the civil tribunals.'" In Founding Church of Scientology v.
United States, supra, 409 F.2d 1146, speaking to the same issue, the court
stated: "under Ballard it seems unlikely that a disgruntled former
adherent could sue a church for fraud and deceit because it had collected
money from him on the basis of allegedly 'false' doctrines ...." (Id.,
at p. 1156, fn. 32.)
Estate of Supple, supra, 247 Cal.App.2d 410, 414, reaffirms that religious
gifts made to a church cannot be set aside by a court on the grounds of
fraud or undue influence because the entertainment of such issues is foreclosed
by the constitutional guarantees of religious freedom contained in the First
Amendment and applied in Ballard, supra, 322 U.S. 78. fn. 8
Finally, Professor Tribe, a highly respected constitutional scholar,
fearing entanglement with church affairs, expressed his concern thusly:
"Once it is conceded that first amendment values are unacceptably compromised
when civil courts undertake to settle religious issues, it becomes clear
that allowing a legal determination about property or some other secular
matter to turn on a court's answer to a religious question represents a
path fraught with peril: the path is one along which unsatisfied former
believers could drag the civil courts into the theological thicket by the
simple expedient of suing for a refund of their prior donations to a religious
organization. ... The same is true when a church contributor seeks return
of a donation on the ground that the religious beliefs inducing the contribution
were false; once we assume that the underlying dispute is properly characterized
as religious, the suit for a refund becomes a transparent vehicle for invoking
[46 Cal.3d 1146] governmental assistance to benefit one side in a religious
conflict at the expense of the other, something the establishment clause
plainly forbids." (Tribe, American Constitutional Law (1988) §
14-11, p. 1235.)
Members of this court may detest the practice of heavenly deception.
We may abhor the results of the Church's selective (and successful) proselytization.
We may condemn such practices as destructive of the integrity of the family.
fn. 9 Yet, as judges we must resist the temptation to tread into this theological
thicket. For it is neither for governments, nor their instrumentalities,
the courts, to divine the truth of those teachings. That is the law to which
we are all bound. fn. 10 I am satisfied that both the Court of Appeal and
the trial court before it have correctly found the law and applied it to
these appellants. Therefore, I would affirm the trial court's grant of summary
judgment on the fraud, emotional distress and restitution counts.
FN 1. We use the names "Unification Church" and "the
Church" to refer collectively to the Holy Spirit Association for the
Unification of World Christianity and New Education Development Systems,
Inc. While the two organizations are apparently separate entities, we need
not differentiate between them for purposes of this opinion.
FN 2. The cross-complaint also named Joseph Alexander, Sr., Stanley
F. Leal, Virginia Mabry, and Judy Powell as cross-defendants. Those parties
are not involved in the present appeal.
FN 3. The Church alleged that Molko, after his own deprogramming,
became involved in kidnapping and deprogramming other Church members.
FN 4. Neither Molko nor Alexander sought review of the reversals
of their judgments of dismissal.
FN 5. Molko, Leal, and the Church have stipulated that the deposition
testimony of Tracy Leal, David Molko, Stanley F. Leal, Collette Zeilinski,
and Ernest Gibbs Patton, Jr. -- which was extensively quoted in the papers
supporting and opposing the Church's motion for summary judgment -- be included
in the clerk's transcript on appeal. Accordingly, we take judicial notice
of the deposition transcripts and consider them part of the record for purposes
of this appeal. (Evid. Code, § 452, subd. (d).)
FN 6. The Church claims the form identified the program at Boonville
as being associated with the Unification Church. Molko claims it did not.
The Court of Appeal acknowledged this created a factual dispute, but deemed
the dispute immaterial because of the conclusions the court reached in holding
the Church was entitled to summary judgment. Because we reach different
conclusions, we do not, as will be seen, find the dispute immaterial.
FN 7. "Witnessing" is the Unification Church's name for
the process of recruiting new members on the street. Bush and Patton, for
example, were witnessing when they persuaded Molko to come to dinner.
Open and candid witnessing is employed by other religious denominations.
FN 8. Leal states the form she signed did not identify the Unification
Church. She took it to be some kind of "hold harmless" form for
the trip to Boonville.
FN 9. The Church argues that under Reader's Digest Assn. v. Superior
Court (1984) 37 Cal.3d 244 [208 Cal.Rptr. 137, 690 P.2d 610], summary judgment
should be deemed a "favored remedy" and viewed under a standard
more favorable to the Church because the case involves the exercise of religious
rights. While similar suggestions have been made elsewhere (see Comment,
Religious Torts: Applying the Consent Doctrine as Definitional Balancing
(1986) 19 U.C. Davis L. Rev. 949, 972-973), we decline the Church's invitation
to elevate the standard here. As we stated in Reader's Digest, the higher
standard for summary judgment in defamation cases is necessary because a
verdict in such actions requires that actual malice be shown by clear and
convincing evidence. (37 Cal.3d at p. 252.) No such necessity exists here.
FN 10. We use the terms "coercive persuasion," "mind
control," and "brainwashing" interchangeably to refer to
the intense indoctrination procedures discussed herein.
FN 11. The Court of Appeal mischaracterized the fraud claims when
it stated that plaintiffs' contention was, "they justifiably relied
on representations they knew to be untrue because those who made the false
representations first stripped [Molko and Leal] of their independent judgment."
(Italics added.) The contention is rather that Molko and Leal justifiably
relied on representations they believed to be true, and as a result were
subjected to a process by which they were stripped of their independent
FN 12. Molko, for example, stated: "I felt my spirit of free
will had been broken by [the] total absence of contact with the outside
world, the rigid indoctrination program which I was going through daily,
and the inability to make any decision on my own." He also stated the
Church subjected him to "psychological and emotional manipulation."
Leal stated: "While I had no intention of ever becoming a Moonie, in
retrospect, I feel that I lost my ability to freely choose whether or not
I wished to stay with the group." She also described herself as "pretty
thoroughly indoctrinated" by her fourth day at Boonville, and as "robot-like."
These statements, from documents incorporated into the pleadings, must be
liberally construed for purposes of contesting a motion for summary judgment.
(Gray v. Reeves (1977) 76 Cal.App.3d 567, 573 [142 Cal.Rptr. 716].) So construed,
they amply support Molko and Leal's coercive persuasion theory.
FN 13. In contending the declarations were properly excluded, the
Church offers several arguments it did not raise in the Court of Appeal,
and which we therefore do not reach. (Cal. Rules of Court, rule 29(b).)
FN 14. Although he did not contest the Church's religious standing
in the Court of Appeal, Molko now seeks to argue, in substance, that the
Unification Church is not a bona fide religion because it is "dishonest."
He may not raise this doubtful contention for the first time here. (Cal.
Rules of Court, rule 29(b).)
FN 15. At oral argument, the Church disavowed any such belief.
FN 16. Although Molko also alleged a cause of action for false imprisonment,
he has chosen not to contest the Court of Appeal's affirmance of summary
judgment for the Church on that action.
FN 17. Although circumstances sufficient to support such a claim
occur infrequently, religiously motivated gifts have occasionally been set
aside on a particularly strong showing of undue influence by religious advisors.
(See, e.g., Estate of Bourquin (1958) 161 Cal.App.2d 289, 299-300 [326 P.2d
604] [will leaving bulk of estate to a church rest home was the result of
undue influence of rest home employees, who held confidential relationship
with testator as religious advisors].)
The Court of Appeal cited Estate of Supple (1966) 247 Cal.App.2d 410,
414-415 [55 Cal.Rptr. 542], to support its position. Supple, however, was
not an undue influence case. In Supple, a lifelong church member left a
portion of his estate to various church charities with which he had a longstanding
association. His grandnephew challenged the will on the sole ground that
the church's teachings were false, and hence the testator was in that sense
tricked into leaving part of his estate to the church. (Id. at p. 412.)
Such a direct attack on the truth or falsity of religious beliefs was clearly
prohibited by the First Amendment. (United States v. Ballard, supra, 322
U.S. at pp. 86-88 [88 L.Ed. at pp. 1153-1155].) However, as we explained
above in distinguishing Katz v. Superior Court, supra, 73 Cal.App.3d 952,
Molko does not challenge the validity of his former beliefs. Therefore Supple
FN 18. Accordingly, we need not consider Molko's invitation to adopt
the views of the Nebraska and Rhode Island supreme courts that gifts to
religious leaders or advisors are presumptively made under undue influence.
(See Guill v. Wolper (1974) 235 191 Neb. 805 [218 N.W.2d 224, 235]; Nelson
v. Dodge (1949) 76 R.I. 1 [68 A.2d 51, 55].
FN 19. In this court Maxwell does not challenge the decision of
the Court of Appeal as to the Church's claim under state civil rights law.
FN 20. The Carpenters court declined to pass on whether section
1985(3) reaches conspiracies other than those motivated by racial bias.
(463 U.S. at p. 835 [77 L.Ed.2d at p. 1058].) The Fourth Circuit, however,
noting that "the lower federal courts have, almost without exception,
extended the coverage of the statute to religious groups [citations],"
has expressly held that a conspiracy against the Unification Church motivated
by religious discrimination falls within the ambit of section 1985(3). (Ward
v. Connor (4th Cir. 1981) 657 F.2d 45, 48; see generally Annot., Civil Liability
for "Deprogramming" Member of Religious Sect (1982) 11 A.L.R.4th
228.) As Maxwell does not contest the Church's claim on this basis, we need
not address this question of federal law.
FN 1. Scientology teaches that by "clearing" or "auditing"
the mind, one can improve both spiritual and bodily health. The E meter
plays an essential role in the process of auditing. The vast literature
describing scientology claims, inter alia, that many bodily ailments, including
cancer, may be cured by auditing.
FN 2. In the words of the majority: "The legal question is
simply whether a religious organization can be held liable on a traditional
cause of action in fraud for deceiving nonmembers into subjecting themselves,
without their knowledge or consent, to coercive persuasion" and "The
challenge is to the Church's practice of misrepresenting or concealing its
identity in order to bring unsuspected outsiders into its highly structured
environment." (Italics added.)
FN 3. The trial court granting summary judgment for defendants eloquently
voiced this same concern: "The declarations of Dr. Singer and Dr. Benson
reveal that both doctors rest their opinions in large part upon the view
that Defendants' recruitment techniques involve 'systematic manipulation
of social influences' which, both doctors conclude, lead Plaintiffs to make
choices they would not have made in the 'free exercise of (their) own will
and intellect.' But these are not statements which are either true or false;
they are veiled value judgments concerning the entire outlook of the Unification
Church. What is 'systematic manipulation' to some may be the only true outlook
to others. ... [¶] Testing the uncontroverted facts here by the principles
applicable to regulation of acts of religious organizations and their members,
as Katz requires, imposition of liability cannot be constitutionally countenanced."
(Italics added, fns. omitted.)
FN 4. The majority also mentions breach of confidential relationship
by the Church as a potential basis for restitution. However, emphasis on
the latter aspect does not add a new dimension to the cause of action because
under well-settled law breach of fiduciary or confidential relationship
is constructive fraud (i.e., a subspecies of fraud). (Civ. Code, §
1573; Darrow v. Robert A. Klein & Co., Inc. (1931) 111 Cal.App. 310,
315-316 [295 P. 566]; Barrett v. Bank of America (1986) 183 Cal.App.3d 1362,
1369 [229 Cal.Rptr. 16].)
FN 5. The pertinent part of the record reads as follows: Molko was
told (and at that time he believed) that "The Heavenly Father is asking
to help us ..."; that "[y]ou are giving a benefit to God and he
would look favorably on that"; "that it was tax time and that
the church was in desperate need of funds, and that it would be most --
that the Heavenly Father would really appreciate, and really look favorably
on seeing me give the money to the church ..."; and "[t]hat you
gave God money and then God, used your money rather than you using your
money, and it worked better that way. In other words, you give your money
to God and then God can distribute your money. And that way, the spiritual
world can work for you."
The reason Molko did not ask for the return of his gift is reflected
by the following excerpts: "Q. Did you ever feel that you should ask
for the money back in order to -- [¶] A. Yes, I thought about that.
[¶] Q. But you never asked for it back? [¶] A. The situation was
such that I -- there was too much guilt and too much fear to ask. You just
don't ask something like that. [¶] Q. What in particular were you afraid
of happening if you did not -- if you did ask for the money back? [¶]
A. That something evil could happen to me. [¶] Q. You were afraid that
by asking for your money back from the church, that something evil -- [¶]
A. No, not something -- [¶] Q. -- would happen to you? [¶] A.
You see, some evil force. You have to understand, I really believed that
there was evil forces lurking around. And that if I disturbed the spiritual
world enough, that something could happen. I believed that. And therefore,
I felt a terrible sense of guilt and fear to ask for something that I had
supposedly given to God."
FN 6. He testified that she told him she "thought I should
do what I thought was best" and "was pretty much leaving it up
FN 7. When referring to the several thousand dollars which were
available to him and which he did not disclose to Church members, he stated,
"I drew the line. ... They were quite under my control, but they stayed
where they were."
FN 8. I disagree with the position of the majority that the complaint
in Estate of Supple was not based upon fraud and undue influence; it clearly
was. That opinion states: "It was also alleged that all of the above
representations [i.e., that there are Heaven and Hell, eternal award and
punishment depending on earthly conduct, etc.] were in fact false and untrue,
constituting childish superstitions incompatible with man's advanced position
in science and technology, and that the charitable beneficiaries who made
these representations were guilty of unduly influencing the testator and
were also guilty of fraud because they had made positive assertions which,
although they believed them to be true, were not warranted by the information
which they had (Civ. Code, § 1572, subd. 2) and because they had breached
a duty which, without an actually fraudulent intent, gained them an advantage
by misleading the testator to his prejudice and the prejudice of his heirs
at law (Civ. Code, § 1573, subd. 1). ... [¶] In this state of
the case, the beneficiaries under the will moved for judgment on the pleadings
against Smith as to the fraud and undue influence counts of his pleading,
and against Hallinan as to his entire pleading. On the same day, the beneficiaries
also moved to strike the Hallinan Pleading and the fraud and undue influence
counts of the Smith pleading. [¶] In due time the matter was heard
and in ruling upon the matter, the court filed a memorandum opinion in which
it stated that the gist of the fraud and undue influence counts of the two
pleadings was that the charitable beneficiaries named in the will had influenced
the making of the will by teaching the testator certain religious beliefs
which were in fact untrue and which they had no reason to believe were true.
..." (247 Cal.App.2d at pp. 412, 413, italics added.) Since the cited
excerpts of the opinion clearly indicate that Estate of Supple was decided
upon fraud and undue influence, it is not only relevant, but extremely persuasive.
FN 9. The Court of Appeal said it best: "The beguiling and
very intensive recruiting methods of the Unification Church, which appear
primarily directed at those young people who are most emotionally impressionable
and vulnerable, seem objectionable to us, as doubtless they do to most disinterested
FN 10. See Justice Mosk's eloquent concurring opinion affirming
this principle when he voted to uphold the constitutionality of the death
penalty, People v. Anderson (1968) 69 Cal.2d 613, 635 [73 Cal.Rptr. 21,
447 P.2d 117]: "As a judge I am bound to the law as I find it to be
and not as I might fervently wish it to be."