Candice S. v. Superior Court

Candice S. v. Superior Court

Filed 8/11/08 Candice S. v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

CANDICE S. Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; RYAN T., Real Party in Interest.

H032683 (Santa Clara County Super. Ct. No. 1-05-CP014264)

I. INTRODUCTION

In this child custody dispute, petitioner Candice S. alleges that her four-year-old son was conceived after she was raped by his biological father, real party in interest Ryan T., who denies the rape allegations. Candice seeks extraordinary relief from the trial courts ruling that the clergy-penitent privilege (Evid. Code, 917, 1030-1034)[1] precludes discovery of the parties communications to the elders of their Jehovahs Witnesses congregations regarding the alleged rape of Candice. For the reasons stated below, we agree with Candice that the clergy-penitent privilege clearly does not apply where third persons were present during the parties communications to the elders. We will therefore issue a peremptory writ in the first instance vacating the trial courts order.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

Candice gave birth to her son in October 2004. Over a year later, on November 3, 2005, Ryan filed a petition to establish his parental relationship. In a settlement conference statement filed April 21, 2006, Candice alleged that she had conceived her son after being raped by Ryan. Candice described the circumstances that led to the rape in her accompanying declaration. According to Candice, she and Ryan were acquaintances who were both members of Jehovahs Witnesses congregations. The rape occurred after Ryan drove her to a drive-in theater on February 28, 2004, on the pretext of meeting mutual friends. At the time, Candice was under the influence of Vicodin and Percocet due to recent dental surgery. She was later counseled by church elders to deal with the situation through the church.

Candice was a member of the Coyote Creek congregation of Jehovahs Witnesses. In May 2004 she met with two elders of the congregation, Jim Tabios and George Hernandez, and disclosed the details of the alleged rape. Tabios and Hernandez then contacted the elders of the Oak Grove congregation to which Ryan belonged. Allan Harris, an elder of the Oak Grove congregation, spoke individually with Ryan.

The first of three Jehovahs Witnesses group meetings concerning Ryans alleged rape of Candice took place later in May 2004. Candice, Ryan, Hernandez, Tabios, and other elders from both Jehovahs Witnesses congregations were present at the first group meeting. According to Candice, Ryan admitted the rape during the meeting and for that reason he was removed as a member of the church.

A second group meeting occurred in August 2004. The attendees included Ryan, his parents, Joe and Ruby T.; and several elders, including Allan Harris and George Hernandez. Candice asserts that the purpose of the meeting was to explain to Ryans parents the reason for his removal from the Oak Grove congregation and therefore the rape allegations, including Ryans statements about the rape, were discussed.

A third group meeting took place in September or October of 2004. The meeting was attended by Joe and Ruby T.; Candice and her mother, Edna S.; and elders George Hernandez, Allan Harris, and Jim Tabios. Edna S. testified at her deposition that the elders said at the beginning of the meeting that Ryan had admitted the rape.

B. Family Court Proceedings

The parties entered into a stipulation and order regarding paternity, custody and visitation on September 21, 2006, in which they stipulated that Ryan was the childs father. The parties also agreed that Ryan would have a visitation schedule with the child, who remained in Candices physical custody. On March 22, 2007, the trial court appointed Michael Kerner, Ph.D., to perform a full child custody or visitation evaluation.

Candice listed elders Allan Harris and George Hernandez as persons to be contacted by Dr. Kerner in performing his evaluation, but the elders invoked the clergy-penitent privilege and refused to speak with Dr. Kerner. Dr. Kerner then asked Ryan to sign a release allowing him to speak to the elders, but Ryan refused to do so. In October 2007 Candices attorney issued deposition subpoenas for elders Allan Harris, Jim Tabios and George Hernandez. The elders attorney advised Candices attorney in a letter dated October 30, 2007, that these three local elders have confirmed that it remains their personal decision based upon their Bible trained conscience and their understanding of the Scriptures and church law to refrain from disclosing any confidential communications made to them by [Ryan].

Thereafter, on December 7, 2007, Candice filed an application for an order to show cause in which she requested the trial court to make a finding and order that the clergy-penitent privilege did not apply to any statements made by her or Ryan in a meeting with church elders at which third persons were present. Ryan did not file a written response to the order to show cause.

In their written response to the application for an order to show cause, the elders independently asserted the clergy-penitent privilege. They argued that the application of the privilege must be determined in light of the practice of the religion and the circumstances of the communication, explaining that they were obligated by their religion to maintain the confidentiality of the group meetings because all attendees were members of a Jehovahs Witnesses congregation and the primary purpose of each meeting was spiritual guidance and counsel. Further, the elders argued that failure to apply the clergy-penitent privilege would violate the establishment and free exercise clauses of the First Amendment of the United States Constitution by denying the right conferred in the rule of privilege to Jehovahs Witnesses, while granting such privilege to other religions. Finally, the elders asserted that the evidence sought by Candice was available from other sources.

The trial court issued the order to show cause and set a hearing date of January 30, 2008. At the hearing, the trial court rejected Candices argument that the clergy-penitent privilege did not apply to statements made by the parties during the group meetings at which third persons were present. The court reasoned that the group meetings were part of the religion and there was no third person present who had no business to be there. The trial court then ruled from the bench that the clergy-penitent privilege applied and the elders did not have to testify at deposition.

Dr. Kerner issued his child custody evaluation and recommendations on February 5, 2008. He recommended joint legal custody, with Candice to have primary physical custody and Ryan to have a regular visitation schedule. Regarding his inability to speak with the elders, Dr. Kerner stated, I am writing this set of recommendations with the belief that if depositions were to occur of the Elders from the Church of Jehovahs Witness[es], that they would be confirming statements that [Candice] did, in fact, say no on several occasions during the sexual event in February 2004 and [Ryans] lack of remorse is in part what led them to eliminate his standing in the church.

On February 29, 2008, the trial court issued its findings and order after hearing that states, The communications sought by respondent [Candice] from the Elders are privileged communications pursuant to [sections] 1030-1034, et seq., and supporting case authority as the communications were confidential pursuant to the tenets of the Jehovahs Witnesses religious practices.

III. DISCUSSION

Candice filed a petition for a writ of mandate in this court on March 6, 2008, in which she seeks extraordinary relief from the trial courts order of February 29, 2008, denying discovery from the Jehovahs Witnesses elders. Her primary contention is that the trial courts order should be vacated because the clergy-penitent privilege does not apply where third persons were present, based on the plain language of section 1032.

Candice also argues that writ relief is warranted because the trial courts order prevents her from gathering and presenting key evidence regarding the childs conception. She asserts that whether a child is the result of rape has a major impact on the fathers rights to custody, pursuant to Family Code section 3030, subdivision (b) [person convicted of rape not entitled to custody or visitation with child conceived as result of rape][2] and Family Code section 3044, subdivision (a) [presumption that person found to have perpetrated domestic violence should not have custody].[3]

A. The Standard of Review

We review a discovery order under the deferential abuse of discretion standard. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.)   Where there is a basis for the trial courts ruling and it is supported by the evidence, a reviewing court will not substitute its opinion for that of the trial court. [Citation.]   (Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1515 (Doe 2). Additionally,  [w]e defer to the courts factual findings concerning privilege if they are supported by substantial evidence. [Citation.] Where the facts are undisputed, the privilege claim is one of law which is reviewed de novo. [Citation.]  (Ibid.)   The trial courts determination will be set aside only when it has been demonstrated that there was no legal justification for the order granting or denying the discovery in question. [Citation.]   (Ibid.)

In the present case, we find that the facts concerning the presence of third persons at the group meetings, which are crucial to the claim of clergy-penitent privilege, are undisputed. Therefore, under the applicable standard of review we will independently determine whether the clergy-penitent privilege precludes discovery of the parties communications to the Jehovahs Witnesses elders during the group meetings held in May 2004, August 2004, and September or October 2004.

B. The Clergy-Penitent Privilege

We begin our independent review by noting the general rules applicable to evidentiary privileges. Section 911, subdivision (a) provides, Except as otherwise provided by statute: [] (a) No person has a privilege to refuse to be a witness. Thus, evidentiary privileges are available in California only as defined by statute. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373; HLC Properties, Ltd. v. Superior Court (2005) 35 Cal.4th 54, 59.) Courts may not add to the statutory privileges except as required by state or federal constitutional law [citations], nor may courts imply unwritten exceptions to existing statutory privileges. [Citations.] (Roberts v. City of Palmdale, supra, 5 Cal.4th at p. 373.)

The United States Supreme Court has described the historical basis for the clergy-penitent privilege: The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. (Trammel v. United States (1980) 445 U.S. 40, 51.)[4] In California, the statutory scheme for the clergy-penitent privilege is set forth in sections 917 and 1030-1034.

The statutory scheme authorizes both a member of the clergy and a penitent to claim the clergy-penitent privilege. ( 1033, 1034.) A penitent is defined as a person who has made a penitential communication to a member of the clergy. ( 1031.) Section 1033 provides, Subject to Section 912, a penitent, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege. Section 1034 provides, Subject to section 912, a member of the clergy, whether or not a party, has a privilege to refuse to disclose a penitential communication if he or she claims the privilege. Under section 912, subdivision (a) the clergy-penitent privilege is waived if a holder of the privilege without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.

The central provision of Californias clergy-penitent privilege is [section] 1032 . . . . (Roman Catholic Archbishop v. Superior Court (2005) 131 Cal.App.4th 417, 443 (Roman Catholic Archbishop).) Section 1032 defines a penitential communication as a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy members church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret.

The current statutory definition of penitential communication, as set forth in section 1032, is considerably broader than the one in effect until 1967. The Law Revision Commission Comments state that the current definition was meant to broaden the protection afforded penitent communications, which traditionally was limited to confessions. [Citation.] . . . . (Doe 2, supra, 132 Cal.App.4th at p. 1516.) Thus, in California there is no requirement that a communication have as its purpose the confession of a flawed act to receive religious consolation and guidance in return  in order to be privileged. (Id. at p. 1518.)

Not every communication to a member of the clergy is privileged, however. In order for a statement to be privileged, it must satisfy all of the conceptual requirements of a penitential communication: 1) it must be intended to be in confidence; 2) it must be made to a member of the clergy who in the course of his or her religious discipline or practice is authorized or accustomed to hear such communications; and 3) such member of the clergy has a duty under the discipline or tenets of the church, religious denomination or organization to keep such communications secret. (People v. Edwards (1988) 203 Cal.App.3d 1358, 1362-1363.)

Of particular importance in the present case is the requirement of confidentiality. [T]he privilege may apply only if the statements were made in confidence, in the presence of no third person so far as the penitent is aware. ( 1032, italics added.) (Doe 2, supra, 132 Cal.App.4th at p. 1518.) Thus, in Doe 2 the appellate court ruled that the clergy-penitent privilege did not apply to statements made to a pastor by the participants in a weekend retreat held to provide  religious and spiritual healing  to the alleged victims of clergy sexual abuse, where the statements were made in the presence of other participants. (Ibid.) Similarly, in Roman Catholic Archbishop the clergy-penitent privilege was held not to apply to documents reflecting communications that were made in troubled-priest interventions because the communications were routinely shared by Cardinal Mahoney, whoever happened to be the current Vicar for Clergy, and sometimes other Archdiocese employees as well. (Roman Catholic Archbishop, supra, 131 Cal. App.4th at pp. 444-445.)

The burden of proof for a claim of clergy-penitent privilege is described in section 917, subdivision (a): If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the . . . clergy-penitent . . . relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential. However, the privilege-claimant has the initial burden of proving the preliminary facts to show the privilege applies. [Citation.] Once the claimant establishes the preliminary facts . . . , the burden of proof shifts to the opponent of the privilege. To obtain disclosure, the opponent must rebut the statutory presumption of confidentiality set forth in [section 917, subdivision (a).] . . . Alternatively, the opponent of the privilege may show that the privilege has been waived under [section] 912. (Roman Catholic Archbishop, supra, 131 Cal.App.4th at p. 442.)

Having reviewed the statutory scheme for the clergy-penitent privilege, we turn to our analysis of the application of the privilege in the present case.

C. The Clergy-Penitent Privilege Does Not Apply

The parties agree that the clergy-penitent privilege protects the communications made in those meetings where the elders met with each party individually. Their dispute concerns the application of the clergy-penitent privilege to the communications made in the group meetings held in May 2004, August 2004, and September or October of 2004. In particular, the parties disagree as to whether the communications made in the group meetings were confidential within the meaning of section 1032 due to the presence of third persons.

The elders position is that the communications made by the parties during the group meetings were confidential and therefore the elders cannot be compelled to testify at deposition regarding those communications. They explain that the religious beliefs and practices of the Jehovahs Witnesses religion require the elders to maintain the confidentiality of any communication received by the elders for the purpose of spiritual guidance. Because the presence of all attendees at the group meetings was necessary for the purpose of spiritual guidance, the elders contend that the trial court properly ruled that the communications were confidential pursuant to the tenets of Jehovahs Witnesses religious practice.

Candice argues that the trial court improperly construed the clergy-privilege to apply to communications made in the presence of third persons as long as the religion requires the presence of those persons. Candice also points out that section 912, subdivision (d), which provides that the disclosure of a confidential communication to third persons does not waive the privilege where disclosure is reasonably necessary for the accomplishment of the purpose of the privilege, does not apply to the clergy-penitent privilege.

We find that Candice met her burden to rebut the statutory presumption of confidentiality ( 917, subd. (a)) by showing that any communications made by the parties during the group meetings with the elders were made in the presence of at least one third person. We emphasize that the statutory scheme for the clergy-penitent privilege expressly provides that the privilege only applies to a communication that is confidential within the meaning of section 1032 because the communication was made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy . . . . ( 1032; italics added.)

The record reflects that third persons were present at each of the group meetings, as follows. At the May 2004 meeting, both Candice and Ryan were present. Therefore, any statements made by Ryan or Candice to the elders during that meeting were made in the presence of a third person, namely, the other party. The meeting in August 2004 was attended by Ryan and his parents and thus any statement Ryan made to the elders during that meeting was made in the presence of his parents, who also constitute third persons. The September or October 2004 meeting was attended by Candice, her mother, and both parties parents. Consequently, any statements made by Candice during that meeting were made in the presence of third persons. Since Candice and Ryan obviously would have been aware of the presence of these third persons when they communicated with the elders during the group meetings, their communications were not confidential. Absent confidentiality, any statements made by either Candice or Ryan during the group meetings do not constitute penitential communications with the meaning of section 1032 and the clergy-penitent privilege does not apply.

We acknowledge the trial courts concern that the tenets of the Jehovahs Witnesses religion provide that the group meetings with the elders were confidential. For that reason, the court found that the presence of third persons did not preclude the application of the clergy-penitent privilege where the Jehovahs Witnesses religion entitled the third persons to be present. The trial court was not authorized, however, to imply an unwritten exception to the clergy-penitent privilege for any religion, since the clergy-penitent privilege is an existing statutory privilege. (Roberts v. City of Palmdale, supra, 5 Cal.4th at p. 373.) Moreover, the general rule is that an evidentiary privilege should be narrowly construed because privileges prevent the admission of relevant and otherwise admissible evidence. (People v. Sinohui (2002) 28 Cal.4th 205, 212.) The presence of a third person therefore precludes the application of the clergy-penitent privilege to a communication made to a member of the clergy, irrespective of any religious tenets regarding the confidentiality of the communication. ( 1032; Roman Catholic Archbishop, supra, 131 Cal.App.4th at p. 444 [clergy-penitent privilege vitiated where penitent priests confidential communication to a cleric was shared with the cardinal and the vicar for clergy, despite church doctrine authorizing them to hear the communication and keep it secret].)

Additionally, we agree with Candice that the clergy-penitent privilege is not subject to the exception provided by section 912, subdivision (d) for disclosure of a confidential communication to a third person where disclosure is reasonably necessary. Section 912, subdivision (d) provides, A disclosure in confidence of a communication that is protected by a privilege provided by Section 954 (lawyer-client privilege), 994 (physician-patient privilege) 1014 (psychotherapist-patient privilege), 1035.8 (sexual assault counselor-victim privilege), or 1037.5 (domestic violence counselor-victim privilege), when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer, physician, psychotherapist, sexual assault counselor, or domestic violence counselor was consulted, is not a waiver of the privilege.

It is significant that the clergy-penitent privilege was not included in the privileges enumerated in section 912, subdivision (d). The maxim [e]xpressio unius est exclusio alterius means that the expression of certain things in a statute necessarily involves exclusion of other things not expressed. . . . [Citation.] (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 7; Gikas v. Zolin (1993) 6 Cal.4th 841, 852.) Therefore, because section 912, subdivision (d) excludes the clergy-penitent privilege, the disclosure of a confidential penitential communication to a third person, even where reasonably necessary to accomplish the purpose of the privilege, constitutes a waiver of the clergy-penitent privilege.

For these reasons, we conclude that the trial court had no legal justification for its order denying discovery of the parties communications to the Jehovahs Witnesses elders during the group meetings held in May 2004, August 2004, and September or October 2004 at which third persons were present, because the clergy-penitent privilege does not apply to those communications.

Having reached this conclusion, we need not address Candices argument that Ryan expressly waived the clergy-penitent privilege during the meetings with the elders or her argument that the trial courts order violated her due process rights. The First Amendment issue concerning the establishment and free exercise clauses has not been addressed by the trial court and for that reason the issue is not before us and we do not decide it.

D. Writ Relief is Warranted

We also find merit in Candices contention that writ relief is warranted. Although writ review of discovery orders is rarely granted, it is appropriate where, as here, the unjustifiable denial of discovery would prevent the petitioner from having a fair opportunity to litigate his or her case. (Volkswagen of America, Inc. v. SuperiorCourt (2006) 139 Cal.App.4th 1481, 1487; Slayton v. Superior Court (2006) 146 Cal.App.4th 55, 57; Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1061.) We further determine that a peremptory writ in the first instance is appropriate.

In limited situations, an appellate court may issue a peremptory writ in the first instance, without issuance of an alternative writ or order to show cause, and without providing an opportunity for oral argument. (Code Civ. Proc., 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1252-1253.) A court may issue a peremptory writ in the first instance  only when petitioners entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issuefor example, when such entitlement is conceded or when there has been clear error under well-settled principles of law and undisputed factsor where there is an unusual urgency requiring acceleration of the normal process. . . . [Citation.]  (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1241.)

However, Code of Civil Procedure section 1088   requires, at a minimum, that a peremptory writ of mandate or prohibition not issue in the first instance unless the parties adversely affected by the writ have received notice, from the petitioner or from the court, that the issuance of such a writ in the first instance is being sought or considered. In addition, an appellate court, absent exceptional circumstances, should not issue a peremptory writ in the first instance without having received, or solicited, opposition from the party or parties adversely affected . . . .   (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1240.)

All procedural requirements for issuance of the writ in the first instance have been followed in the present case. We notified the parties that we were considering issuance of a peremptory writ of mandate in the first instance, and the real party in interest, Ryan, had the opportunity to file a written response. The applicable principles of the law of privilege are well established, the relevant facts are undisputed, the child custody issue requires acceleration of the normal process, and Candices entitlement to relief is so obvious that plenary consideration of the issues is unnecessary. (Lewis v. Superior Court, supra, 19 Cal.4th at p. 1241.) Accordingly, we will grant the petition for writ of mandate in the first instance.

IV. DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to vacate the February 29, 2008 order issued on petitioner Candice S.s application for an order to show cause regarding the application of the clergy-penitent privilege and to enter a new order finding that the clergy-penitent privilege does not apply to any communications made by her or Ryan T. in a meeting with Jehovahs Witnesses elders at which third persons were present. This opinion is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.264(b)(3).) Each party is to bear its own costs in this original proceeding.

_

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

Mcadams, J.

_

duffy, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Evidence Code unless otherwise indicated.

[2] Family Code section 3030, subdivision (b) provides, No person shall be granted custody of, or visitation with, a child if the person has been convicted under Section 261 of the Penal Code and the child was conceived as a result of that violation.

[3] Family Code section 3044, subdivision (a) provides, Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the childs siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.

[4] The development of the clergy-penitent privilege is discussed in Yellin,The History and Current Status of the Clergy-Penitent Privilege (1983) 23 Santa Clara L.Rev. 95.